7

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LORD STOWELL

, Oxford.

LORD STOWELL

i iir-- «r'

HIS LIFE AND THE DEVELOPMENT
OF ENGLISH PRIZE LAW

BY

E. S. ROSCOE

REGISTRAR OF THE PRIZE COURT OF GREAT BRITAIN AND IRELAND
EDITOR OF " ENGLISH PRIZE CASES "

LONDON

CONSTABLE AND COMPANY LTD.
1916

Printed in Great Britain.

JK

'1

UNIVERSITY OF CALIFORNIA
SANTA BARBARA COLLEGE LIBRARY

PKEFATORY NOTE

t^ ONE result of the Great War has been a

5 renewed interest in Lord Stowell's personality

i£ and in his judicial work. But his biography

|f in Townsend's Twelve Eminent Judges, and

the combined biography of the two Scotts

in Surtees' short Lives of Lord Eldon and

Lord Stowell, were published in 1848 and are

now out of print. The reader therefore who

desires to become acquainted with Stowell's

career is left for a modern biography to a

o slight sketch in a work called Great Jurists

~ of the World, and to the brief, though, from

rs its authorship, important article in the

£ Dictionary of National Biography. The first

aim, therefore, of the following pages is to

present an impression of Stowell as a man,

from which, supplemented by the tabular

statement at the commencement of the book,

a clear view can be obtained of the course of

3 his life. The second aim is to enable a reader

§: to realize Stowell's judicial work, to collect
i and to formulate thoughts and criticisms

OF

vi LORD STOWELL

which a perusal of his decisions arouses, and
to define the achievements of a judge and a
jurist whose influence on one branch of British
jurisprudence — of international as well as of
national value — was individual, important, and
permanent.

Two portraits of Lord Stowell may be seen
at Oxford — one painted in 1807 by Hoppner,
is at University College; another painted
in 1827 by T. Phillips, is at Corpus Christi
College. In the Library of University College
is a statue on the same pediment as one of
Lord Eldon. A third portrait by Phillips is in
the Council Chamber, Town Hall, Newcastle-
upon-Tyne.

CONTENTS

PAGE

CHRONOLOGICAL TABLE ix

CHAPTER I

BIOGRAPHICAL : 1745-1780 — OXFORD — THE JOHNSON

CIRCLE ........ ]

CHAPTER II

BIOGRAPHICAL: 1780-1836 — ADVOCATE — JUDGE . . 16

CHAPTER III

THE PRIZE COURT AND PRIZE LAW .... 28

CHAPTER IV

STOWELL'S JUDICIAL WORK AND ITS RESULTS . . 40

CHAPTER V

SOME ILLUSTRATIVE JUDGMENTS ..... 53

CHAPTER VI

THE STOWELL CASE LAW AND THE DECLARATION OF

LONDON 70

vii

viii LORD STOWELL

CHAPTER VII

PAOE

THE STOWELL CASE LAW IN THE GREAT WAR . . 80

CHAPTER VIII

STOWELL AS JUDGE OF THE HIGH COURT OF ADMIRALTY 94

APPENDICES

I. REPORTS WHICH CONTAIN LORD STOWELL'S JUDG-
MENTS, AND NOTE ON SOME MS. NOTES BY HIM . 103

II. CONTRABAND AND BLOCKADE .... 105

III. LIST OF LORD STOWELL'S PRINCIPAL PRIZE DECISIONS

IN CHRONOLOGICAL ORDER . . . . 110

IV. DOCTORS' COMMONS IN 1598 . . . . 113
INDEX 115

CHRONOLOGICAL TABLE

1745 October 17

1761 February 24

1761
1762
1764
1764

1765
1767
1772
1774

1777

1779
1779

1780
1781

1782
1783

1 See Er,
Reading, 1912

March 3
June 24
November 20
December 13

June 14
June 17
May 30

June 23
November 5

February 11
April 7

May 21

Born at Heworth, County Durham. Eldest
son of William Scott of Newcastle-upon-
Tyne, one of the Guild of " Hoastmen,"
shipbroker, and merchant, who died in
1776, and of Jane, daughter of Henry
Atkinson of Newcastle, merchant ; she
died 18th July 1800.

Elected a Durham Scholar of Corpus Christi
College, Oxford, after education at New-
castle Grammar School.

Matriculated.

Student of Middle Temple.

B.A.

Probationary Fellow of University College.
Resigned Fellowship April 7, 1782.

Actual Fellow, and Tutor till 1776.

M.A.

B.C.L.

Elected Camden Reader of Ancient History ;
resigned 1785.

Took chambers and lived at 3 King's Bench
Walk, Temple, and began to keep Terms,
but did not leave Oxford finally till 1780.

D.C.L.

Enrolled as an Advocate of the College of
Doctors at Law exercent in the Ecclesi-
astical and Admiralty Courts.

Called to the Bar, Middle Temple.

Marriage to Maria Anne, eldest daughter
and co-heiress of John Bagnall, Esq.,
of Erleigh Court,1 Reading, who pur-
chased it in 1766 ; she died on September
4, 1809. The Scotts lived at 5 College
Square, Doctors' Commons.

Appointed Advocate of the Admiralty.

Appointed Registrar of the Court of
Faculties.

Court and its Owners, by E. W. Dormer, Poynder,
ix

x LORD STOWELL

1784 ... Elected M.P. for Downton, Wiltshire, but

was unseated on petition.

1788 August 30 Appointed Judge of the Consistory Court
of the Diocese of London ; resigned
1821.

1788 September 3 Appointed King's Advocate.

1788 ... Knighted.

1788 September 24 Appointed Vicar-General of the Province
of Canterbury.

1790 ... Elected M.P. for Downton, through the

influence of Lord Radnor who had been
his pupil at Oxford.

1790 April 3 Appointed Master of the Faculties.

1798 October 26 Appointed Judge of the High Court of
Admiralty.

1801 March 23 Elected M.P. for the University of Oxford.

1813 April 10 Second marriage to Louisa Catherine,

Dowager Marchioness of Sligo, and
youngest daughter of Richard, first
Earl Howe ; she died at Amsterdam on
the 20th August 1817. On this marriage
Lord Stowell removed to 11 Grafton
Street. He had lived at 47 Leicester
Square from 1807 to 1809, and then at
16 Grafton Street. Subsequently Lord
Stowell lived at 16 Cleveland Row, after
Lady Sligo's death at 11 Grafton Street.

1821 July 17 Created Baron Stowell of Stowell Park,

County Gloucester.

1827 December 27 Resigned Judgeship of High Court of
Admiralty.

1836 January 28 Died at Erleigh Court and was buried on
February 3 at St. Andrew's Church,
Sonning, Berks, leaving an only daughter
surviving him (his only son William
died on November 26, 1835, aged 42),
Maria Anne Viscountess Sidmouth, who
died 26th April 1842, when Lord
Stowell's landed property descended to
his nephew, Viscount Encombe, son of
the Earl of Eldon. Lord Stowell's estate
was sworn under £250,000.
At Sonniug there is a memorial brass in
the South Aisle and a mural monument
over the doorway of the North Aisle.
In the Temple Church is a tablet to the
memory of Lords Stowell and Eldon,
erected by the Society of the Middle
Temple " to the memory of these highly
distinguished brothers."

CHAPTER I

BIOGRAPHICAL
1745-1780

OXFORD — THE JOHNSON CIRCLE

ON the 17th of October 1745, and again on
June 4, 1751, a son was born to William
Scott " hoastman," coal merchant, broker
and shipowner of Newcastle - upon - Tyne.
William, the elder of these two boys, be-
came Lord Stowell, the creator of a definite
and reasoned body of prize law in Great
Britain and in the United States. John,
the younger, afterwards Lord Eldon, was for
many years Lord Chancellor of England.
William Scott in his own generation achieved
repute as a civil lawyer — for his knowledge
of ecclesiastical, of Admiralty and of prize
law was remarkable, but he certainly was not
then regarded as more noteworthy than other
successful lawyers of his time, and when,
in 1805, there were rumours at Westminster

that he was about to receive a peerage it was

i B

2 LORD STOWELL

not — as we should have expected — looked on
as an approaching reward for high judicial
services, but for his silent votes in Parliament.
" I hope," wrote Fox to Windham, " that
our friend Sir William will not have his peerage,
and that his close attendance and voting
through thick and thin will not avail him."
He was considered by his contemporaries a
clever and agreeable person ; "a very useful
ingenious man " was a description of him
when he was a tutor at Oxford ; " one of the
pleasantest men I ever knew," was Sir Walter
Scott's estimate of him in later life. But
not one of Scott's contemporaries foresaw
that from an able Oxford tutor and a success-
ful lawyer he would become a famous jurist,
and as the names of the eminent judges of
the later part of the eighteenth and of the
beginning of the nineteenth centuries became
more and more obscured by the enveloping
mists of time, that of Stowell would continue
to emerge, till it stands among those of the
great jurists of the world, and as of one who
has attained a positive and unique fame on
both sides of the Atlantic as the creator of the
modern prize law of England and America.

William Scott was elected to a scholarship
at Corpus Christi College, Oxford, in February
1761 ; he finally left the University in 1780,
when he was thirty-five. He had then been an

THE JOHNSON CIRCLE 3

actual Fellow and a tutor of University College
since 1765, and a University professor — Cam-
den Reader of Ancient History — since 1773. In
fact he did not resign the Readership till 1785,
and thus continued in academic connection
with his University after he had embarked
on an active professional career in London.

In the eighteenth century it was largely
a matter of temperament whether a tutor at
Oxford or Cambridge was sluggardly or active,
for he was left to his own devices, and " com-
paratively little help was given to the learner."
Colleges were filled with Fellows, middle-aged
and old, who " were like drone bees," and the
younger and more energetic, who were probably
in a quiet way less inactive than is often
supposed, were lost in the supine crowd which
was the easy butt of every University satirist.
Scott, as his whole life showed, though not
ambitious in the popular acceptation of the
word, had a high sense of public duty and an
unobtrusive energy which urged him to achieve-
ment, and he became, without pressure, an
efficient and conscientious teacher. John
Barton of Corpus Christi College and William
Scott of University College are mentioned by
Gibbon in his Autobiography as two men
who realized their academic responsibilities.
Scott's activities even extended beyond his
college ; he originated a scheme for increasing

4 LORD STOWELL

the funds of the Bodleian Library by means
of an annual payment by those entitled to use
it, and by a small fee on matriculation, and
he assisted in the raising of a loan for the
purchase of certain objects of art for the
University Galleries. In the world of Oxford
in his day William Scott clearly stood far
above the many idlers and mediocrities who
sat around the college high tables, he was one
of the few " good tutors," and he may be
regarded also as one of those through whose
efforts and example the University at the
end of the century began to improve.

The academic and social atmosphere of
Oxford affected Scott's personal and pro-
fessional career not less than his work as a
judge. In his day an Oxford Common Room
was a sociable place, it contained both learned
and — it must be admitted — very idle persons,
but those who entered it lived well, port wine
and classical lore made them excellent company.
The impress of University College never left
Stowell throughout his life. But he carried
his learning lightly, uniting with it a northern
shrewdness which produced a rare judicial
combination, and enabled him to leave to
posterity a continuing fame as a jurist, and
property which, in technical language, was
sworn for probate under two hundred and
fifty thousand pounds.

THE JOHNSON CIRCLE 5

The year 1776 was a crucial one for Scott
and changed the course of his life. It is pro-
bable that the death of his father, by which he
became a man of independent, though small,
means, and therefore free from pecuniary
anxieties, had to do with this alteration in his
career. He inherited the residue of his property,
which is said to have amounted to £20,000.
It was, at any rate, a substantial sum, and as
the emoluments of his fellowship were sufficient
for his personal needs he even began to save
money, as he continued to do throughout his
life. His economical habits were the result
of his northern shrewdness, but as he grew older
prudence degenerated into parsimony. Some-
times this shrewdness produced a selfish attitude:
" for my own part," he wrote in a pessimistic
temper to his brother Henry, upon the surrender
of Yorktown, in 1777, " I am sick of politics :
there is so much folly on the part of ministers,
and so much villany of the other side, under
the cloak of patriotism, that an honest man
has nothing to do but to lament the fate of his
country, and butter his own bread as well as
he can, and I hope you take care to do so."
Stowell throughout his life never failed in
buttering his own bread, and it was with the
same idea, altruistically applied, that char-
acteristically he gave the larger part of his
property to his son in his own lifetime to

6 LORD STOWELL

escape the legacy duty. But as has happened
in similar cases, by an irony of fate, the son
died before the father, so that the only result
of this attempt at posthumous economy was
the payment by himself of legacy duties on
his son's estate.

To return, however, to 1776, the important
fact is that in this year, confident in his own
powers, Stowell relinquished his tutorial duties
and surrendered, when he was approaching
middle age, an assured and already distinguished
academical career for the uncertainties of a
professional life ; he entered on a period
wherein his mind was wholly engrossed in
preparation for his subsequent work as a
jurist. This intermediate space lasted for four
years, during which he lived partly in London
and partly at Oxford. But he continued to
prepare and deliver the Camden lectures, which
greatly increased his academic reputation and
gave him a high place in the estimation of
scholars and men of letters. These lectures
have never been published, and they remain,
therefore, only traditional evidence of Scott's
academic learning and ability. During the
last year of this period he was already an
advocate of Doctors' Commons, though in
accord with the rescript of the Archbishop of
Canterbury — by whom Doctors of Law were
admitted to the Faculty of Advocates — he

THE JOHNSON CIRCLE 7

was unable to practise during the so-called
year of silence. Its main interest lies in the
fact that it enabled Scott to add largely to
his store of legal learning, and in addition
to his knowledge of civil law, to make himself
thoroughly familiar with the history of the
English Common Law and with the decisions
of the Courts at Westminster, knowledge which
subsequently was clearly evinced in more than
one important case.

Eighteen years form a substantial part of a
lifetime, and those which Scott passed at Oxford
inevitably had, as has already been pointed
out, a permanent effect on his work as a lawyer
and on his subsequent social life. He never
seems, however, once he had embarked on a pro-
fessional career, to have reverted to his classical
and historical studies as a pastime during his
professional and judicial life ; he was one who
concentrated his mind on the work which lay
before him, and when history and the classics
had served his purpose he closed his classical
and historical books. But StowelPs Oxford
years made him for one thing a unique example
of an academic lawyer ; no one quite like him
ever, in modern times, occupied a high judicial
position. Before he began to earn fees in
London he had been an industrious student
and an able teacher, and he was a learned
and broad-minded scholar. Thus owing to

8 LORD STOWELL

his life and work at Oxford he became, unlike
most eminent English lawyers, a scientific
jurist. He had not been nurtured on special
pleading, on technical rules of equity or on
judicial precedents collected in a long series
of reports ; he especially valued form and
style, qualities which were essentially those
of a University professor rather than of a
lawyer educated in the Temple or at Lincoln's
Inn.

The years during which Scott had enjoyed
a genial Common room and an ample high
table had given him a liking for good living;
beef steak and oyster pudding is said to have
been his favourite dish, and a bottle or two
of port was his habitual beverage. He had
an excellent constitution and a good digestion,
and if he lived well he lived long. But there
was a finer side to Stowell's social life. It
was through his fellowship at University
College that he became known to Dr. Johnson,
and that a friendship grew up which presently
had a fortunate influence on Stowell's social
life in London.

Robert Chambers (b. 1737), a Newcastle
man like Scott, was also a Fellow of the same
college, he knew Johnson well, and it was
on a visit by Johnson to Chambers at Oxford
that Scott and Johnson became acquainted.
Chambers was appointed to a judgeship in

THE JOHNSON CIRCLE 9

India in 1774, and when he left England,
Stowell, as he said to Croker, " seemed to
succeed to his place in Johnson's friendship."
He was Johnson's host in the summer of 1777.
" I have laid aside," he wrote to his brother
Henry, on August 6, " all thoughts of coming
down to Newcastle for the year, having devoted
the summer to solitude and study at Oxford.
. . . The University is very empty ; I have
had my friend Johnson staying with me for
a fortnight." 1

Perhaps Johnson was thinking of this visit
when, in one of his talks with Boswell, he said
that University College had seen him drink three
bottles of port. At any rate, from this story
we see a glimpse of Oxford in the eighteenth
century, as well as of the habits of Johnson's
two friends.

Through his sojourn at Oxford, Stowell
appreciated cultivated and friendly company ;
he would have enjoyed the learned, easy and
witty intercourse earlier in the century, when
Harley, Bolingbroke, Swift, Gay and other
men of letters forgathered at the Coffee-
houses or in their apartments to dine and
discuss politics and literature. His election
to the Literary Club in 1778, the same year
in which Sheridan, Lord Ashburton, Sir Joseph
Banks, Windham and Lord Spencer were ad-

1 Townsend, Twelve Eminent Judges, p. 290.

10 LORD STOWELL

mitted to it, is evidence enough of StowelFs
sociability not less than of his intellectual gifts.
He was not, so far as one can see, a witty or
a humorous talker, but he had a great fund
of information, an excellent memory and a
pleasant manner. The few anecdotes which
exist of his conversation happily do not contain
faded bons-mots but are evidence of these
substantial attainments. His social qualities
were well summarized by Sir Walter Scott
when he calls him a pleasant man. A pleasant
man in society is always an appreciative
listener, which implies good nature and a
quick brain, with a corresponding ability to
say the right thing at the right time. Without
these qualities Stowell would not have been
Johnson's intimate friend or his companion,
for instance, on the visit to Edinburgh in 1773.
It was on this visit — which was the prelude of
Johnson's never-to-be-forgotten journey to the
Western Highlands and Skye — that Boswell
first became acquainted with Scott. Johnson
arrived on August 14, and Scott returned to
the South when the visit to Edinburgh con-
cluded on the 18th. Boswell was too en-
grossed in Johnson to record his impressions
of the Oxford tutor, and he only tells us, in
a cursory way, that " Mr. Scott's amiable
manners and attachment to our Socrates at
once united me to him." Yet these few words

THE JOHNSON CIRCLE 11

are valuable, for they convey a sense of Scott's
personal affection for Johnson, evidenced by
pleasant outward attentions. It is in fact
one of the rare occasions when we obtain a
glimpse — but a glimpse only — of the person-
ality of Scott.

We again meet Johnson, Boswell and
Scott in April 1778. One evening they dined
together at Scott's chambers in the Temple.
The sage was not in good spirits and for some
time the conversation flagged ; but presently
Johnson began to give his opinions on sub-
ordination, then on fame, on wealth and on
war, and at last on the perennial subject of
the Cock Lane ghost, but throughout the
evening, at least in Boswell's chronicle, Scott
had little to say, and the main impression
which is left by these pages is of the pleasant
and friendly intimacy of the gathering. We
seem to realize Boswell and Scott quietly
listening to Johnson, stimulating him by
occasional remarks to continue his rich stream
of talk. The last time we meet them is on
Easter Sunday of 1781. After service at St.
Paul's Cathedral, Boswell called on Johnson ;
presently Dr. Scott joined them and then
followed some familiar and serious talk.
" Lectures," said Johnson, talking of educa-
tion, " were once useful ; but now, when all
can read and books are so numerous, lectures

12 LORD STOWELL

are unnecessary; if your attention fails, and
you miss a part of the lecture, it is lost, you
cannot go back as you do upon a book."
Dr. Scott agreed with him. Then Boswell
evidently thought that Scott had given him
an opening for his wit, and he continues, well
pleased with himself, " but yet," said I,
" Dr. Scott you yourself gave lectures at
Oxford." He smiled. The sequel is in
BoswelFs best style. " You laughed then,"
said I, " at those who came to you." Scott
was too urbane to do more than smile at
BoswelFs blundering remarks, and he probably
smiled again, elusively.

After Stowell reached the Bench he had
time to enjoy social pleasures, but when an
advocate his professional occupations, which
engrossed his days and often long parts of
the night, prevented him, though sociable
in temperament, from mixing much in
general society, and the tone of the John-
sonian circle best suited his easy pleasant
character and his intellectual gifts. In that
circle he was essentially a comrade. " Poor
Reynolds' death," he wrote to Warton on
April 2, 1792, " occasions a terrible void among
us, we have had no society worth naming
since his death." Here we see at once an
appreciation of that group which comprised
the first men of letters and of art of the later

THE JOHNSON CIRCLE 13

years of the eighteenth century, an apprecia-
tion at once personal and intellectual. On
the day of Johnson's funeral we have a glimpse
of Scott dining with Reynolds, Dr. Burney
and others who valued the friend they had
lost, a party which marks and emphasizes the
place of Stowell in the literary life of the
London of his time. It is as one of the
Johnson circle, and only as one of that remark-
able group, that Stowell will, from the point
of view of the history of English society,
continue to be remembered.

Yet looking back to that agreeable company
we note a difference between " Dr. Scott " —
as he was called in the Club — and his literary
friends and associates. We never know him as
we know, for example, Johnson, and Reynolds,
and Dr. Burney and Burke, with whom we
have long been friends, and who are endeared
to us not less by their faults than by their
gifts. We may have a sincere admiration for
Scott's striking abilities, but he never was
and never will be a friend. He never gives
us his confidence, nor are there revealed to us
in him the many human qualities which are
among the chief attractions of the eminent
men with whom he so intimately associated.
This is partly his misfortune, for materials for a
kindlier remembrance of him do not exist,
and, instinctively almost, we portray him

14 LORD STOWELL

from his judgments. Yet his fellowship with
so many warm-hearted and gifted persons
proves that he had fine qualities of the heart
as well as of the head.

Stowell's friends, however, had more sub-
stantial grounds for their appreciation of him
than his pleasant companionship ; he was a
sound adviser and he was always ready to
place his time and his capacity at their dis-
posal. He thus obtained and held their
confidence. It was for this reason, one cannot
doubt, that Johnson appointed him, with
Reynolds and Sir John Hawkins, one of his
executors, bequeathing to him with a right
appreciation of the tastes of his learned friend,
his Dictionnaire de Commerce and Lectius'
edition of the Greek poets. This confidential
position, after the death of Reynolds and
Hawkins, involved Scott in a troublesome corre-
spondence with Dr. Parr, who had been com-
missioned by Reynolds, on behalf of the
executors, to write a Latin epitaph on Johnson.
The self-willed divine refused to submit his
composition for approval and grew wrathful
at the request ; Stowell, after some conciliatory
letters, left the matter to be settled by Malone,
who too was a friend of Johnson and a member
of the Literary Club. This was the character-
istic letter under cover of which Stowell
retreated from the discussion :

THE JOHNSON CIRCLE 15

April 30, 1795.

MY DEAR SIR — Don't think me guilty either of
affectation or of disrespect to you, when I tell you,
that the term being come in, attended with an un-
common load of business, both professional and
official, I really am not able to reply to your obliging
letters otherwise than by thanking you for them, and
by saying that I have transferred to our common
friend, Mr. Malone, the pleasure of answering them
according to his own judgment ; in which, having
entire confidence, I shall be thoroughly disposed to
concur. You will, I am sure, thank me for the choice
of correspondent ; and I beg you to believe me, with
real respect, your very humble servant,

W. SCOTT.

To-day the pedantic epitaph and Bacon's
classical statue of Johnson, each singularly
inappropriate, can be seen by any one who
visits St. Paul's Cathedral, and a perusal of
Dr. Parr's eulogium may recall to some of
us the friendship of Johnson and Stowell.

CHAPTER II

BIOGRAPHICAL
1780-1836

ADVOCATE — JUDGE

WE now see Scott starting on a professional
career as an advocate in Doctors' Commons.

This legal nest of civilians was a quiet
spot under the shadow of St. Paul's, on the
southern side of the Cathedral, with an entrance
from Knightrider Street. There were gathered
the advocates — a group of some twenty-five,
Doctors of Law, who had in early times been
formed into a " Society," and were, in 1768,
incorporated by Royal Charter under the
title of the College of Doctors of Law exercent
in the Ecclesiastical and Admiralty Courts.
Here were their business Chambers, but some-
times an advocate would occupy an entire
house with his family, as did Lord Stowell.
Here too were the offices of the proctors —
also limited in number — or, as they would now
be called, solicitors, though they were not

16

ADVOCATE— JUDGE 17

admitted to general practice. The pleasant
group of brick buildings, with stone quoins
and dressings, dated from 1762. Erected on
the site of Mount joy House, under a perpetual
lease granted in 1570,1 the first buildings were
burnt down in the Great Fire, and for a time
the Doctors made Exeter House their home
until their new habitation arose. Doctors'
Commons had a collegiate appearance with
its two quadrangles : in one was the Library,2
and hard by was the Hall which served as the
Court-house, not only for the Admiralty Court
exercising its Instance or civil jurisdiction,
but in addition, in time of war, its prize juris-
diction. Within it were held also the Con-
sistory Court of the Diocese of London, and
the Courts of the Province of Canterbury, in
which the Doctors of Law and the Proctors
were practitioners. Few men can now be
living who were familiar with this interesting
portion of vanished London. But, from the
description of one who knew it well in the
days of Dr. Lushington, an accurate picture
of the interior of the Hall, when Stowell held
his Court within its walls, can be obtained.

The Judge occupied an elevated seat at
the upper end of a room panelled with oak;

1 See Appendix IV.

2 The books, MSS. and portraits from the Library were sold in
April 1861, the buildings on November 25, 1862 ; the College being
dissolved under the Probate Act, 1857.

C

18 LORD STOWELL

on the walls hung the coats of arms of the
advocates. Below the Judge was placed the
Mace or Silver Oar, and on either side were
seats for the advocates, each having his allotted
place ; beneath sat the proctors at a long
table which extended at right angles from
the Bench. At the lower end of it was a seat
for the Registrar, or his deputy, behind whom
a few spectators were sometimes to be seen. A
touch of colour was added when the King's Advo-
cate and the Admiralty Advocate were in Court
in the scarlet robes worn by Doctors of Law.

Doctors' Commons was a close borough in
which much important business was decorously
transacted, and which, as readers of Horace
Walpole's Letters know, was the last scene of
many of the fashionable scandals of the time.
The inclusion in it of the Admiralty and Prize
Courts seems at first sight singular. To under-
stand it we must carry our minds to the four-
teenth century, to an age when there were no
commissioned warships, and when owners of
private vessels seized the property of belliger-
ents and neutrals alike — whether ships or
cargoes — with equal zest. We have also to
picture an Admiral of the Fleet who, from his
position, became an arbiter in maritime dis-
putes. If an instance were needed one might
note the fact that in 1357 the King of Portugal
complained that an Englishman had removed

ADVOCATE— JUDGE 19

Portuguese goods from a French ship which
had previously captured them. " The answer
of Edward the Third is that our Admiral has
judicially and rightly determined the owner-
ship of the goods claimed by your merchants.5'
This is the first mention that has been found
of judicial proceedings before the Admiral ;
it marks the beginning of the Court of Admiralty
as a prize tribunal. For two centuries after
this date there are few indications, in the
records, of its prize jurisdiction, cases usually
came before the Council or the Chancellor, or
Commissioners ad hoc.1 Formal legal proceed-
ings for prize were, therefore, probably very
rare, it was at least three centuries before
disputes as to prize were generally brought
before the Lord High Admiral's legal deputy,
and it was not until the eighteenth century that
all cases of prize came before the Court.

But once the legal germ existed it required
only opportunity to grow into more ample
size. In 1498, in a treaty with France, it is
provided that all prizes shall be adjudicated
on by the Admiral. This is one instance only
of a more general recognition of the Admiral
as a judicial personage; but, as soon as this
high official deputed his judicial work to a
lawyer, a regular tribunal was in time evolved.

1 " Early English Prize Jurisdiction," English Historical Review,
vol. xxiv. p. 680.

20 LORD STOWELL

This gradual evolution can be illustrated by
a letter of Sir Leoline Jenkins in 1666 to the
Lords Commissioners of Prizes, in which he
tells how the master of a Riga ship had been
barbarously treated by the captors in order
to obtain evidence favourable to them. He
concludes : " Thus I have given your Lord-
ships an Account of the Pretensions of the
one Side and of the other, as minutely as I
can ; in Regard this business is devolved to
your Lordships from His Majesty in Council.
But I do suppose the Privateer will insist
upon the Title he has to a legal Trial, which
as I humbly conceive, cannot be denied him." 1
This letter seems to point to an informal
investigation in the first place by the Lords
Commissioners of Prizes, and, if this was not
satisfactory to the captors and the claimants,
then to a formal trial before the Judge of the
Admiralty Court, who at that time was Jenkins
himself. As for the judge, he was, at first,
merely a substitute for the higher official, as
in a case in 1389, in which one William Toomer
is spoken of in the records as " Substitute and
deputy." But so soon as we realize that the
deputy of the Admiral became in time the
judge alike for prize and for maritime disputes,
we grasp succinctly the history of the Admiralty
Court. For as the Prize Court was also the

1 Life of Sir Leoline Jenkins, by William Wynne, vol. ii. p. 730.

ADVOCATE— JUDGE 21

Admiralty Court, and the prize jurisdiction
one which was only in being in time of war,
the history of the Prize Court and of its judges
is necessarily the same as that of the Admiralty
Court at certain times in our history.1 But
there was this fundamental difference between
the jurisdiction of the judge in regard to
Admiralty and to prize matters. He could
only exercise this latter jurisdiction after an
appointment by the Crown — " the captors'
right to prize money being derived from the
Crown, the Crown decided what was and
what was not good prize." Orders or com-
missions to try cases of prize were, therefore,
constantly issued, and in time a practice was
established by which, at the commencement
of a war, the Crown issued a Commission
which required the Judge of the High Court
of Admiralty " to proceed upon all and all
manner of captures, seizures, prizes, and
reprisals of all ships or goods which are or
shall be taken, and to hear and determine
according to the course of Admiralty and the
law of nations." Because it was by the law
of nations that the Prize Court was guided,
and because the Admiralty Court was guided,

1 See further on this subject Marsden's " Early Prize Jurisdiction
and Prize Law in England," English Historical Review, vol. xxiv.
p. 675, vol. xxv. p. 243. See also Select Pleas in the Court of
Admiralty, 2 vols., edited for the Selden Society by Reginald G.
Marsden. Law and Custom of the Sea, by Reginald G. Marsden.
Publications of the Navy Records Society, vol. xlix.

22 LORD STOWELL

in its earlier days, by ancient maritime customs
and ancient maritime codes, and not by the
common law of England, the High Court
of Admiralty was never one of the ordinary
municipal tribunals, one of the King's Courts
at Westminster, administering the common
law of England. The practitioners in it were
therefore civil lawyers, and from among them
the deputy of the Lord High Admiral was
selected. At first without a fixed abode, the
Court in time became more and more localized :
at one time in the old church of St. Margaret,
Southwark, and then, about 1675, it was
finally established among the civilians at
Doctors' Commons, after they had secured
permanent quarters in the City of London.

Stowell's reputation at Oxford had preceded
him to Doctors' Commons, and he sprang at
once into a considerable practice. This rapid
rise could hardly have occurred — even in a small
professional circle — to a man who was without
the personal and intellectual influence which
this eminent civilian had already attained. It
was but two years after Scott first appeared
in Court that he was appointed Advocate-
General to the Admiralty, an office which
'gave him the right to appear professionally
for the Admiralty in suits to which it was a
party. In the following year (1783) John
Scott, his brother, wrote of him, " His success

'O

1 si

.III*. (!'

ADVOCATE— JUDGE 23

is wonderful and he has been fortunate beyond
example." This short space of three years,
at the beginning of Scott's professional life,
is an epitome of his entire career as an advocate ;
he was in constant practice, he was paid large
fees, and, in his quaint fashion, he used to
carry to his bedroom at night for safe custody
those fees which he had received during the
day. Lucrative offices, open only to civilians,
were bestowed on him, which are stated in
detail at the beginning of this volume. It
was, therefore, almost a matter of course that
he should become the successor of Sir James
Marriott, in 1798, as Judge of the High Court
of Admiralty, and, as Great Britain was then
at war, Judge also, by virtue of his office, of
the British Prize Court.

The domestic atmosphere of the Court in
which Sir William Scott practised was not
one which stimulated advocacy to a high
pitch of eloquence or passion. What little
evidence there is on the subject makes one
believe that StowelPs manner was conversa-
tional, his matter substantial, and that towards
the end of his career at the Bar he was some-
times rather overbearing. The manner of
Doctors' Commons has perhaps become tradi-
tional, for one seems to recognize in Stowell
the same characteristics as have since been
noted in the Courts which are the successors

24 LORD STOWELL

of that in which Stowell practised. He was
clearly more suited by temperament to a
seat on the Bench. He had what is called a
good presence, a fine face, and a dignity of
manner as he presided over his Court which
were lost when he left it ; for his short and
rather stout figure was ungainly, and we are
told by a practitioner in his Court that he had
a waddling walk like a duck.1 Nor was he
particular in his dress. One likes, therefore,
to think of him as the judge rather than in
any other sphere of activity. Sometimes in
his speech even on the Bench he recalled his
northern origin by his occasional provincial
accent, and turned his " e's " into " a's."
" The merchant in this case," he would say ;
and he once observed to a practitioner, whose
methods he did not like, that " We want none
of your Jarsey tricks in this Court." He had
a kindly feeling for those who practised before
him, and from time to time entertained a
party of members of his Bar to dinner; and
then, seated at the head of his table, pleased
his guests by his admirable conversation, of
which, however, the younger members of the
party who were at the lower end heard only
precious scraps and fragments.

Two episodes in Stowell's personal life

1 " Anecdotes of Lord Stowell," Gentleman's Magazine, vol. xxvi.
part ii. p. 367.

ADVOCATE— JUDGE 25

deserve brief mention — his first and second
marriages. The first was in 1781, when he mar-
ried a lady who was co-heiress of John Bagnall,
Esquire, of Erleigh Court, Berkshire. She is
now for us a name only, but it was in all respects
a fortunate alliance for Stowell : in her right
he became the owner of the pleasant estate of
Erleigh Court, near Reading, with a moderate-
sized house, within easy reach of London, and
which henceforth became his country home.

However, in his second marriage Stowell
made the one mistake of his life, and this
demands a few lines of notice. On December
16, 1812, the Marquis of Sligo, a young man
of twenty-two, was indicted at the Admiralty
Sessions at the Old Bailey for seducing two
seamen in time of war from a king's ship to
enter his service on a brig, with which he was
about to cruise on the coast of Greece. He
pleaded guilty, and Stowell in his dignified
way passed sentence, fining Lord Sligo £5000
and ordering him to be imprisoned in Newgate
for four months. After this trial, through
the intervention of an aunt of the boy's
mother, the Marchioness of Sligo, and a friend of
Stowell's, he became acquainted with this lady.
Within four months they were married. The
event caused no little amusement in London
society, and was unfortunate for each of the
parties. The wife was generous, the husband

26 LORD STOWELL

parsimonious ; the wife liked her evenings at
home, the husband preferred the society of
the Club and of his legal friends. Of their
short married life we know little, but it is
certain that the marriage was not agreeable in
its outcome, and Stowell and his wife became
estranged. Lady Sligo died during a visit
to Paris and Amsterdam while Stowell was
making a tour in Switzerland.

One almost forgets that for thirty-one years
Stowell was a member of the House of
Commons, for in those days the Judge of
the High Court of Admiralty was not ineligible
for a seat in Parliament. It is sufficient to
say that he was a strong Tory in politics, and
a close attendant at Westminster, and that he
never intervened in debate except on some one
of the rather technical subjects of which he was
a master or in which he was officially interested.
He was created a peer on the Coronation of
George IV., taking his now historic title from
an estate which he had purchased in Gloucester-
shire, and which — by the way — turned out an
unprofitable investment. But it gave him a
name which has become historical.

Stowell outlived most of his contemporaries
and consequently became the oldest member
of the immortal Club, but after he retired in
1828 from the Bench of the High Court of
Admiralty, with which he is permanently

ADVOCATE— JUDGE 27

associated, he lived for the most part quite
quietly at Erleigh Court, his fine intellect
much impaired by age. His daughter, the
wife of Henry Addington, afterwards Lord
Sidmouth, was his favourite companion. She
had many of her father's gifts, and Mary
Russell Mitford has left a very pleasing sketch
of her. "I have," she wrote soon after Lady
Sidmouth's death, "seldom known any one
more thoroughly awake and alive to all that
was best worth knowing. She had an en-
lightened curiosity, a love of natural history,
of antiquities, of literature, of art ; was herself
full of talent, intelligence and gaiety, and had
a quick and peculiar humour." S to well re-
mained also on terms of affectionate confidence
with his brother, Lord Eldon, by whom he was
often visited. It was in his pleasant country
home that Stowell died on February 28, 1836,
many years after his memorable judicial work
had been completed. Learned and hard-headed,
prosperous and pleasant, his life was, apart
from his transcendent achievements as a judge,
undistinguished. Personal details, which once
may have been of interest, and which excited the
curiosity of his contemporaries, have now been
reduced to their proper proportions, so that in
the historical perspective Stowell has become
almost an impersonal figure, so closely is his
individuality merged in his monumental work.

CHAPTER III

THE PEIZE COURT AND PRIZE LAW

WHEN an eminent man has been in his grave
for eighty years, posterity in that space of
time has generally assessed his career and
his work at their true value. History is
strewn with examples of the inaccuracy of
contemporary estimates ; and the opinion
formed of Stowell by the men of his own
generation is yet another instance of this
statement, for if one had asked one of his
contemporaries upon what his reputation
rested, the answer certainly would have been
that it was due to his learning and experience
as an ecclesiastical lawyer. Posterity has
finally and decidedly formed a different estimate
of StowelPs historical position. As an ecclesi-
astical lawyer he was the adviser of officials
and of private persons, as such he held several
important ecclesiastical judgeships, and in his
judicial capacity pronounced some interesting
and valuable judgments. In a legal text-
book these decisions must necessarily be

28

PRIZE COURT AND PRIZE LAW 29

enumerated, but as we approach the end of
a century from Stowell's birth, to us who
stand at a long distance from the period of
his professional and judicial activities, these
judgments are no more than personal incidents
in his judicial life, evidence of his capacity
in one of his several spheres of work. Some
of these decisions have, it is true, become, in
lawyer's language, " leading cases " in matri-
monial and probate law; but in spite of this
fact, for us they are dead, and their in-
dividuality is merged in a mass of subsequent
decisions and of statute law.

In some degree, but to a lesser extent,
oblivion has clouded the individuality of
Stowell's purely Admiralty decisions, or, as
they should strictly be termed, decisions on
the Instance side of the High Court of
Admiralty. The qualities and the character-
istics of Stowell as a judge in the Prize Court,
and the unique circumstances which occurred
at the time he held that office, which make
his tenure of it permanently remarkable, were
present in some degree in relation to his
Admiralty judgments, and of these an impres-
sion is given in a later chapter. But whereas
the Prize Court acts only in time of war, the
Admiralty Court sits year in and year out,
and in the long period since Stowell resigned
his office a large number of decisions of his

30 LORD STOWELL

successors, of the Judicial Committee of the
Court of Appeal and of the House of Lords,
have completed the structure of which some
of Stowell's decisions may be regarded as
corner-stones. It is therefore on his work
as Judge of the Prize Court for twenty-nine
years, and on that work alone, that the
universal fame of Stowell with posterity
indubitably rests.

Before, however, we turn to Stowell and
the Prize Court, it is desirable to sketch first
of all, in a few lines, the nature of the juris-
diction exercised by the Prize Court in the
eighteenth century. The first fact to bear
in mind, as Stowell himself pointed out, is
that " all rights of prize belong originally to
the Crown, and the beneficial interest derived
by others can proceed only from the grant of
the Crown." It was under this grant to
ships of war, and, in the eighteenth century,
to privateers, evidenced by the issue of a
proclamation at the commencement of every
war, that vessels forming units of the Royal
Navy, and privateers to which letters of
marque had been issued, were entitled to
those ships and cargoes which they captured
during war and which the judge of the Court
condemned as lawful prize. Another large
class of prizes was known as Droits of
Admiralty. This arose out of ancient grants

PRIZE COURT AND PRIZE LAW 31

by which the Crown ceded a portion of its
rights to the Lord High Admiral ; they were,
once for all, expressly denned by an Order in
Council of March 6, 1665-66 ; and, briefly
stated, comprehended " all prizes captured
during hostilities either in port or by non-
commissioned vessels, or persons." 1 A third
class — Droits of the Crown — should also not
be left out of notice, comprising captures
effected by a conjoint force of the Army and
Navy — as on the seizure of an enemy's colony
or possession — and captures made before the
commencement of hostilities. For an embargo
or stop was often placed on vessels of another
Power which were lying in port before a declara-
tion of war, and if hostilities ensued, these
vessels and their cargoes were proceeded
against in the Prize Court as lawful prize.

The distinction between Crown Droits and
Droits of Admiralty became of historical
interest only after 1702, when Prince George
of Denmark, then Lord High Admiral, sur-
rendered the Droits of Admiralty to the Crown.
But the distinction between captures under
the grant of the Crown and captures which,
it was alleged, were Droits of Admiralty, had,
when Stowell was Judge of the Prize Court, a
real importance, and often gave rise to warm
disputes between the captors and the Govern-

1 Prize Droits, by H. C. Rothery, C.B., p. 13.

32 LORD STOWELL

ment, which now possessed the rights of the
Lord High Admiral. Some of Stowell's most
luminous and lengthy judgments were delivered
for the purpose of deciding these opposing
claims.

Another important branch of prize juris-
diction was concerned with disputes as to
Joint Capture — differences between rival ships
of war as to whether this ship or that —
whether one of the Royal Navy or a privateer
— was entitled to a share in a prize. These
contests between admirals and captains, sub-
ordinate officers and the crews, gave rise to
legal disputes, which seem inappropriate to
such differences, and to quite a series of
decisions on the rules which should guide the
Court in allowing a vessel to take a share of
the booty in the hands of the Court. Such
picturesque, if perhaps unedifying, disputes
no longer trouble the Prize Court to-day,
since the captors do not now obtain any
individual benefit from prizes taken at sea.1
There were yet other subjects for the considera-
tion of the Court, such as prize salvage — the
reward for the recapture of British vessels
previously taken by the enemy, — and the
various claims for freight, damages and other
subsidiary matters arising out of seizures of
ships and cargoes. But this jurisdiction was,

1 Order in Council, August 28, 1914.

PRIZE COURT AND PRIZE LAW 33

as compared with that of the ordinary Civil
Court, obviously small and limited, and was
therefore susceptible of receiving and retaining
the impress of a single and a powerful legal
mind.

Before, however, one can properly appre-
ciate the extraordinary results of StowelFs
tenure of the judgment seat of the English
Prize Court, one has also to realize the state
of the law by which the Prize Court was
guided when he became Judge of the High
Court of Admiralty in 1798 and when he
retired in 1828. English prize law had, unlike
other prize laws, been administered judicially
from the thirteenth century, and numbers of
judgments of the High Court of Admiralty
were preserved among its records as well
as the decisions of the Lords Commissioners
of Prize Appeals. But these judgments
and decisions were no more than formal
expressions of the results of the hearing in
the first instance and in others of an appeal,
and did not, except in a few rare instances,
contain the reasoning on which a decision
was based. The latest of these documents
differed little in form from the earliest, and,
as they were not usually supported by recorded
judicial expressions, they were useless as pre-
cedents. A few isolated cases, it is true, had

been chronicled, as for example by Sir William

D

34 LORD STOWELL

Burrell, an advocate of Doctors' Commons,
who collected a number of decisions in the
High Court of Admiralty, and of the Lords
Commissioners of Prize Appeals which extended
from 1758 to 1765,1 and there were also a
few decisions, more fully reported, of Sir
George Hay and Sir James Marriott from
1776 to 1779.2

In the note-books and in the memories of
the advocates of Doctors' Commons precedents
also existed which were utilized both by the
advocates and by the Judge, but they were
hardly more than legal traditions, often liable
to be misunderstood, for they could not be
accurately verified. A remarkable instance
of this vagueness of traditional precedent is
the case of the " Med Guds Hielpe," decided
by the Lords Commissioners of Prize Appeals
in 1778, by which it was settled that pitch
and tar were absolute contraband. This was
referred to by Lord Stowell in 1798 as " the
famous case of Med Guds Hielpe." " The
manuscript notes which I have of that case,"
he continues, " expressly state it (the cargo)
to have been condemned on the ground of

1 Reports of cases determined in the High Court of Admiralty and
upon Appeal therefrom, Temp. Sir Thomas Salusbury and Sir George
Hay, Judges, 1758-1774, by Sir William Burrell, Bart. Edited by
Reginald G. Marsden, Barrister-at-Law, London, 1885.

2 Decisions in the High Court of Admiralty during the time of Sir
George Hay and of Sir James Marriott, late Judges of that Court,
1776-1779.

PRIZE COURT AND PRIZE LAW 35

contraband." * But it was not till 1856, when
Dr. Pratt published his book on the Law of
Contraband of War, and printed in it some
manuscript notes of Sir George Lee, an eminent
civilian and statesman, which were stored at
Hartwell in Buckinghamshire, among others
a summary of the arguments and judgment
in this case, that any published report of it
was available to the legal profession, and
even that was of a meagre and unilluminating
nature. Nothing, in fact, in the nature of a
series of judicial precedents having the validity
of a legal code was to be found — there was a
chaotic collection of law, the usefulness of
which was slight. Perhaps this was not
surprising when the small number of lawyers
who were permitted to practise in the Prize
Court is borne in mind. The great body of
English lawyers, barristers and solicitors, knew
and cared nothing about prize law. It was
not a subject which interested them profes-
sionally, and therefore there was no reason
why they should study it academically, for
the study of jurisprudence as a science has
never taken root in England, and legal study
has been regarded mainly as a preliminary
to the acquisition of money. This limitation
of the practice of the Prize Court to a few
civilians, which continued until after the

1 The Slaadt Embden, 1. C. Robinson, p. 26.

36 LORD STOWELL

Crimean War, has also unquestionably tended
to the neglect of the study of international
law in more recent years, and when the present
war broke out, with the old limitations removed,
the Prize Court open to all practitioners, and
the site of Doctors' Commons covered by
commercial buildings, it found English lawyers
serenely ignorant of the groundwork of British
prize law.

Returning to the time when Stowell became
judge of the Prize Court, the reader will have
realized that no body of jurisprudence by
which judges and advocates could be guided,
or by which an Administration could be
assisted in dealing with foreign Powers, was
to be found, and Great Britain was therefore,
from a scientific point of view, without a
prize law. Such was the state of things on
the appointment of Sir William Scott.

The absence of reported decisions not only
rendered the English prize law uncertain, it
also gave greater weight to the contents of
the various treaties by which certain points
of prize law had from time to time been agreed
upon by Great Britain and European Powers.
Administrative instructions necessarily, under
such circumstances, possessed a higher value
than they deserved as expositions of prize
law. Thus in 1664 an Order in Council was
issued which contained various rules and

PRIZE COURT AND PRIZE LAW 37

directions to be observed by the High Court
of Admiralty in the adjudication of prizes.
The second of these stated " that where the
ship shall belong to any of His Majesty es
friends, allyes, or subjects, or any of them,
and shall have persons or goods found aboard
her belonging to any of the states of the
United Provinces, their subjects or inhabitants,
in such case the said ship and the said goods
shall be alike condemned as good and lawful
prize." 1

This rule is quite opposed to the law as
administered in the British Prize Court a
century later, a fact which shows how little
regard judges may have for law as expressed
in administrative orders.

The absence of judicial precedents produced
another result. It necessarily obliged officials,
who from time to time had to defend the
national action in regard to maritime capture,
to refer to the opinion of such text-writers
as they thought would justify their views.
In the dispute — for example — as to the
Silesian Loan, in 1753, Frederick the Great
made a claim for compensation for damages
and loss sustained by his subjects in conse-
quence of the seizure and detention of Prussian
ships by Great Britain. The Law Officers of
the Crown in their Report or answer relied

1 Pratt on the Law of Contraband, p. 250.

383656

38 LORD STOWELL

on the authority of various writers, Grotius,
Voet, Heineccius and others, on the Law of
Nations.1

The English people have been bred on legal
precedents; administrative decrees and irrespon-
sible academical opinions are therefore wholly
alien to the spirit and the history of English
jurisprudence. Charles Butler, who, in his
time, was extraordinarily learned in English
Common and Real Property law, and was
also a skilful conveyancer, adverting to the
small attention paid to the study of the Law
of Nations in England, pertinently observes
in his Life of Grotius : " Is it not also, because
the law of nature and nations, with all its
merits, is so loose, that its principles seldom
admit of that practical application which
renders them really useful ; and which an
English mind always requires ? " Stowell
appreciated the nature of the English mind
and at once proceeded to place the prize law
of Great Britain on the same basis as, and to
assimilate it in character with, the law which
was administered in the municipal courts of
England. He impressed on his collection of
international law the historical and national
characteristics of English law. He placed it
above the uncertainties of temporary adminis-
trative orders, outside mutual international

1 The Silesian Loan and Frederick the Great, Satow, p. 88.

PRIZE COURT AND PRIZE LAW 39

pacts; he removed it from academical discus-
sion, he demonstrated to the world that the
British Prize Court was a completely impartial
judicial tribunal, with a well-defined procedure,
and that its decisions were based on a reasoned
body of jurisprudence, and he completed
promptly and boldly, with infinite wisdom and
sagacity, the long evolution of British prize
law which had begun in the fourteenth cen-
tury. This was a remarkable and a memor-
able achievement, of immense present and
future importance, when the growth of the
British Empire and that of the United States is
borne in mind, and, fitly enough, it was syn-
chronous with the victories of the British Navy,
which raised the maritime power of Great
Britain to a supreme position.

CHAPTER IV

STOWELL'S JUDICIAL WORK AND ITS
RESULTS

WHEN Scott became Judge of the High Court
of Admiralty, with its two distinct jurisdictions,
he had attained a peculiar position for which
he was especially fitted, at a time fortunate
for his country and himself; as Lord Morley
says of the appearance of Voltaire, " in the
phraseology of pre-scientific times it might
well have been called providential." His
temperament was judicial. He was a masterly
scholar and an erudite lawyer ; he was hard-
working and shrewd, clear-headed and broad-
minded. The union of these attainments and
qualities, which may be summarized as a union
of learning and sagacity, together with the in-
estimable gift of being able to apply his powers
aright, produced a remarkable result — judg-
ments which are their fruit and representation.
At the moment when Stowell became a
judge England was involved in a great
European struggle and in a long maritime

40

STOWELL'S JUDICIAL WORK 41

war — the seas swarmed with British cruisers
and with brave and energetic, not to say
rapacious, privateers. The Prize Court was
therefore in continuous request. Stowell in-
stinctively realized his opportunity, and set
himself to fulfil a great task which was
admirably achieved. How clearly he recog-
nized his position is to some extent evi-
denced by some words in a judgment
delivered early in his judicial life in 1799 —
in which also he definitely stated certain basic
principles in regard to visit and search of
neutral vessels by belligerent ships of war.
" I trust," he says, " that it has not escaped
my anxious recollection for one moment, what
it is that the duty of my station calls for from
me — namely, to consider myself as stationed
here, not to deliver occasional and shifting
opinions to serve present purposes of particular
national interest, but to administer with in-
difference that justice which the Law of Nations
holds out, without distinction, to independent
states, some happening to be neutral and some
to be belligerent." * Stowell pursued judicial
ideals and he perceived that he was placed
in a position in which they could be realized
and in which he could permanently create a
body of British prize law. Many capable and

1 The Maria, 1. C. Robinson, p. 340 ; 1. English Prize Cases,
p. 152.

42 LORD STOWELL

honest judges would have been satisfied to
deliver, what Stowell called in the judg-
ment in the Maria, occasional and shifting
opinions. There is, indeed, a great tempta-
tion to a judge of a Prize Court to look rather
to present and transitory circumstances than
to general principles. It has been said that
Stowell leaned towards his own country — a
belligerent nation. This criticism was certain
to be made against his judgments, because in
them he recognized the fundamental basis of
maritime capture in time of hostilities, that
it is in principle a necessary operation of war.
For this reason he would not countenance
any suggestion by which a blockade should
be weakened. "What is the object of a
blockade ? " he asked. He answers the
question by the words, " to cut off all com-
munication of commerce with the blockaded
place." " I must, therefore," he continued,
" consider the act of egress to be as culpable
as the act of ingress." 1

There are and always will be two schools
in regard to the conflicting interests of belli-
gerents and neutrals, one seeking to affirm the
powers of belligerents and the other to safe-
guard the convenience of neutrals in time
of war. Stowell, whilst he recognized the

1 The Frederick Molke, 1. C. Robinson, p. 86 ; 1. English
Prize Cases, p. 58.

STOWELL'S JUDICIAL WORK 43

supremacy of the belligerent, was equally
careful of the cause of neutrals. Thus he
definitely decided that when a neutral ship
carries a contraband cargo, the shipowner
should only lose his freight and not his vessel,
unless it was proved that the claimants had
acted fraudulently.1 A sound basis of common
sense underlies this rule, but for the moment
that is not the point. The purpose of reference
to the question in this place is to show StowelPs
tenderness to neutrals, when it was possible
to unite it with the safeguarding of the power
of a belligerent. Again, he decided not that,
as is the law of France, the purchase of a
vessel from a belligerent by a neutral in time
of war is absolutely invalid, but that it may
be invalidated ; " such purchases have been
allowed to be legal but they will always be
open to much suspicion." a At any rate,
therefore, the neutral was not deprived of his
ship without a judicial examination.

In no respect, however, was Stowell more
lenient to neutrals than when he very decisively
ruled that under no circumstances could a
neutral vessel be destroyed without payment
of compensation. It is the primary duty of a
captor to bring a neutral vessel and a cargo

1 The Ringende Jacob, 1. C. Robinson, p. 89 ; 1. English
Prize Cases, p. 60.

2 The Bernon, 1. C. Robinson, p. 102 ; 1. English Prize Cases,
p. 70.

44 LORD STOWELL

which is seized into port for the purpose of
obtaining the judgment of the Prize Court
as to whether it is or is not lawful prize.
Stowell admitted no qualification or modifica-
tion of the rule. It might be impossible by
reason of the impracticability of placing a
prize crew on board the captured vessel, or
from some other maritime cause, to navigate
a captured neutral vessel into port, but under
such conditions the choice lay between release
and destruction with payment of compensa-
tion. " Where it (the vessel or other property)
is neutral, the act of destruction cannot be
justified to the neutral owner, by the gravest
importance of such an act to the public service
of the captor's own state ; to the neutral it
can only be justified, under any such circum-
stances, by a full restitution in value." 1
Stowell thus safeguarded neutrals without
embarrassing belligerents from a military point
of view. This ruling was not only just, but
was also for a belligerent diplomatically sound,
since, speaking broadly, a neutral could not
well complain, if the act of destruction did
not injure him financially.

It is outside the scope of this book to discuss
problems of international law in their bearing
on future relations between belligerent and
neutrals. But it certainly seems that Stowell's

1 The Felicity, 2. Dodson, 381 ; 2. English Prize Cases, 233.

STOWELL'S JUDICIAL WORK 45

judicial decisions on the point should become
of general application, though it must be
admitted that the weakness of some neutrals
will apparently lessen the value of such a
rule unless there is sufficient union among
neutral nations in time of war to safeguard a
few general regulations at least. The con-
tinuous destruction of neutral vessels by
Germany, and the refusal of the German Prize
Court to order the payment of compensation,
have shown that only combined action by
neutrals can have any practical value, and of
this there has — in the present war — been a
complete absence.

The individuality of StowelPs work pro-
duces an almost indefinite but certainly exist-
ing tendency to regard him as an original
creator, whereas, in fact, it was his admirable
art to adapt the opinions of publicists and
theorists to the facts which were brought
before him. He seldom cited a writer on
international law, but he had recognized
treatises in his mind and he applied doctrines
boldly and on his own responsibility, so as to
produce a series of decisions on which his own
individuality was stamped.

The value of this body of law, at once clear,
definite and flexible, can be better appreciated
by those who are not lawyers if it be compared
with the present state of prize law in France,

46 LORD STOWELL

by which the Conseil des Prises is now guided,
which is thus described by a French writer :

Les juridictions administratives, a d6faut de
codes, se fondent du moins sur des lois. Le Conseil
des Prises, lui, n'a cette ressource qu'exceptionnelle-
ment. En effet, le le"gislateur n'est presque jamais
intervenu en notre matiere. Ce ne sont done guere
que des d^crets qui 1'ont re"glement6e. Us sont nom-
breux, mais assez peu cohe"rents, ayant £te faits
a des dates tres e'loigne'es, sous des regimes fort
differens, en raison de besoins varies et parfois
contraires. Les plus r£cens n'ont pas tou jours
abroge les plus anciens, mais souvent 1'abrogation
implicite r6sulte pour ceux-ci de I'impossibilit^ oil
Ton serait de concilier leur application avec l'6tat
de choses actuel. On con§oit que 1'embarras du juge
soit parfois assez grand au milieu de cet amoncelle-
ment de textes non co-ordonn6s. II s'aggrave du
fait que les decrets ne sont pas les seules sources du
droit que le Conseil a a consulter. En dehors des
textes fran§ais, il doit en effet s'inspirer de textes
internationaux, declarations ou conventions adoptees
dans des congres ou des conferences diplomatiques, et
qui lient les Puissances co-contractantes, lorsqu'elles
ont etc dument ratifies par leurs autorites souveraines
respectives. II doit meme parfois appliquer des
textes purement etrangers, par exemple lorsqu'il a a
apprecier les relations qui unissent, d'apres leur loi
nationale, deux parties momentanement soumises a
sa juridiction. II doit encore tenir compte des usages
nautiques gen^ralement suivis, tirer parti de la juris-
prudence adoptee par ses devanciers fra^ais des
siecles ante"rieurs, ne pas ne"gliger celle des tribunaux
de prises Strangers, particulierement quand ce sont
ceux de Puissances alliees, enfin respecter en toutes
circonstances l'6quite. Les inspirations qu'il puisera

STOWELL'S JUDICIAL WORK 47

dans ces diverses sources ne seront pas tou jours
d'accord entre elles.1

From falling into this " amas de textes si
varies," as the writer of this interesting paper
in another place terms French prize law,
which can be studied in detail in Pistoye and
Duverdy's Traite des prises maritimes (Paris,
1885), Lord Stowell for all time effectually
guarded British prize law.

In so doing Stowell surrounded English
prize law with an atmosphere of justice —
not so much by actual phrases in the course
of a judgment as by the continuous exposition
of the grounds of justice on which his decisions
were founded. Sometimes, it is true, actual
words are to be found which heighten the
effect of the general equity of the judgment by
indicating a personal sympathy which, how-
ever, was not allowed to hinder justice. " This
is an unfortunate case," so we read in the
Two Susannahs ; 2 " the Court is very desirous
that full justice should be done to the claimants,
but the cargo is not equal to it. ... The ques-
tion then is, whether the captors have acted
so irregularly as to make themselves liable."
The answer was in favour of the captors, but
the decision, while adverse to the claimants,

1 Revue des Deux Mondes, tome trentieme — lre livraison
(ler novembre, 1915, p. 104, art. " La Juridiction des prises ").

2 1. C. Robinson, p. 132.

48 LORD STOWELL

recognized that they had a reasonable ground
for bringing their case before the Court. In
another and later case Lord Stowell concluded
a judgment by which a claimant was held to
be a Dutch subject, whose vessel must therefore
be condemned, by observing that : " The
Court is therefore under the necessity of
considering this gentleman as a merchant of
the enemy's country and of pronouncing the
ship, as his property, liable to condemnation." 1
It is not necessary to emphasize the suggestive
art of this sentence — the implication of an
imperious but proper claim of justice, not
less than the courtesy to the claimant as an
individual. Other and similar passages could
be collected, but apart from their context
they are less striking, and it is the cumu-
lative effect of a whole series of judgments
from which emanates, by reason of Stowell's
masterly manner, a sense of even-handed
justice.

A very different scene was thus spread
before the legal observer after the lapse of a
little more than a quarter of a century from
the day when Sir William Scott took his
seat as a judge. Nine volumes — except the
two last entirely filled with prize cases —
enshrined the decisions of Lord Stowell in
the Prize Court, and in them were contained

1 The President, 5. C. Robinson, p. 277.

STOWELL'S JUDICIAL WORK 49

a series ot precedents so comprehensive, so
full of principle, and so logical that the collec-
tion was of greater value than any code, since
it exhibited, as no code could, the application
of judicial principles to concrete and varying
facts. From beginning to end they retained
a continually high level of thought, learning,
form and expression, revealing keen perception
of legal principles with rare insight into the
value of facts.

The long continuance of the war against
Napoleon was a fortunate circumstance for
Stowell in the role of law-giver, it made his
judicial position unique. For a very long
period — year after year — he alone was the
Judge of the Prize Court, no colleague modified
his views or differed from his conclusions, no
colleague's judgments varied the continuity of
his judicial style. He was master of the
procedure of his Court, which became a kind
of individual judicial domain. The Prize
Court was thus, through a concurrence of
circumstances, identified with a personality.
There was, it is true, a Court of Appeal in the
shape of the Lords Commissioners of Appeals
in Prize Cases, on which body some able men
were to be found. Sir William Grant (1772-
1859), for some time Master of the Rolls, was
one of these, and seems to have usually acted
as President of the Court : his reputation

E

50 LORD STOWELL

among his contemporaries, at first as a parlia-
mentary debater and later for his judicial
grasp and the admirable expression of his
judgments, was very high. But the decisions
of this tribunal were, as a rule, quite baldly
stated and, except those delivered from 1809
to 1811, were not republished in a volume,
and even in Acton's Reports there is scarcely
a judgment which is more than a few lines
in length. StowelPs decisions were, moreover,
affirmed with an agreeable monotony which
assisted in adding to the authority of his
judgments. The long-drawn-out war further
enabled him to accumulate his judgments,
and to link them one to the other, to develop
an embryonic principle, and to establish it
by reference not to one set but to a series
of facts. A sense of continuity and of system
was thus created which gave the reports
collected by Dr. Christopher Robinson and
Dr. Dodson the value of a treatise, with the
additional and important weight of judicial
authority. During the long period of peace
which existed from November 20, 1815, to
March 27, 1854, this special body of juris-
prudence became more and more recognized
as authoritative and national.

A lasting result of Stowell's action was to
introduce a remarkable certainty into English
prize law. Judicial precedent being as it

STOWELL'S JUDICIAL WORK 51

is the basis of modern English law, Lord
Stowell's precedents, especially uninfluenced
as they were by previous decisions, formed at
once a fixed juridical groundwork, and as
they were so little varied by the Court of
Appeal, and attained at once among lawyers
and statesmen a high repute, they became
year by year more solidly established. Lord
Stowell was thus, in the words of an eminent
English judge of the present day, rather a
law-giver than a judge. But for Stowell there
would never have been that sharp difference
between the clear and definite body of English
prize law and the unsystematic and indefinite
collection of administrative decrees, decisions,
and academic opinions which constitute con-
tinental prize law. Nor would the prize law
of the United States have grown up — as it
has done — in the same form and on the same
principles as that which was evolved in
Doctors' Commons between 1798 and 1828.
Lord Stowell in fact lifted British prize law
to a quite different plane from that on which
it had previously rested : it emerged under
his guidance from the condition in which all
other prize laws still are, to one which placed
almost the entire groundwork on a basis of
reasoned principles. The effect he could have
little foreseen, for now his judgments are not
only in some degree the law of the United

52 LORD STOWELL

States, but of all British dominions which
have come to manhood since his time, and
in which Prize Courts have in recent times
been established. During the present war his
decisions have guided the judges of British
Prize Courts from Egypt to Canada, from the
Cape of Good Hope to Hong-Kong.

CHAPTER V

SOME ILLUSTRATIVE JUDGMENTS

FOR the full appreciation of Stowell's work
we must examine with some particularity a
few at any rate of his decisions. Reference
has already been made to a notable judgment
on the subject of blockade, one which in the
Napoleonic Wars was of much importance
alike to belligerents and to neutrals.

Stowell, as has been narrated, took his
seat as Judge of the Prize Court at the end
of October, 1798 ; at this time on the law
of blockade there was a complete absence
of British juridical authority. This is not
altogether surprising, for maritime warfare
had, until the wars of the eighteenth century,
consisted almost entirely in the destruction
or capture at sea by one belligerent of the
ships of the other. Stowell soon filled this
legal gap, and within seven months of his
appointment, that is by the end of May, 1799,
several leading and important principles on

53

54 LORD STOWELL

this branch of prize law had been formulated,
explained, and established.

The basis of the action of a belligerent in
reference to a blockade, and the foundation
and justification of this maritime action, was
thus enunciated in January 1799 : " A block-
ade," said the Judge, " is a sort of circum-
vallation round a place, by which all foreign
correspondence and connection is, as far as
human effort can effect it, to be entirely cut
off. It is intended to suspend the entire
commerce of that place, and," there follows
one result, " a neutral is no more entitled to
assist the traffic of exportation than of importa-
tion." 1 Such being the elementary rights of
a belligerent, it was Lord Stowell's object to
uphold them without injustice to neutrals
whose freedom of commerce was obviously,
but necessarily, diminished by the exercise of
this modern form of maritime warfare.

For the proper protection of the belligerent's
rights it was declared that the knowledge of
the master of the ship which broke a blockade
affected her owners, that a blockade continued
to be legally in existence although the winds
did occasionally drive off the blockading
squadron, and that the intention, if clearly
proved, to break a blockade rendered a ship
and cargo which belonged to the same owner

1 The Vrouw Judith, 1. C. Robinson, p. 150.

ILLUSTRATIVE JUDGMENTS 55

liable to confiscation. On the other hand a
notification of a blockade without a sufficient
investment was declared not to found a legal
blockade, and a notification of a blockade
being an act of High Sovereignty, a com-
mander of a belligerent ship could not extend
it. It was also laid down that it is the duty
of a belligerent country which has instituted
a blockade immediately to notify the dis-
continuance of it. These are by no means
the whole series of Stowell's rulings on this
one subject, which are to be found in the
volumes in which his decisions are preserved,
but they clearly illustrate the rapid and
remarkable change which came over English
prize law almost as soon as he became the
Judge of the Court. In a few months there
were publicly enunciated not academic pro-
positions but judicial sentences which were
binding both upon the British as belligerents
and upon neutral countries whose subjects
were parties to prize proceedings, and which
dispelled all doubts on the subjects which
they covered. Multiply the seven decisions
on blockade delivered within seven months
by the succeeding and similar spaces of time,
and it is possible to realize the extraordinary
performance of Lord Stowell. It was one
which proceeded week by week, month by
month, until, to a large extent from the

56 LORD STOWELL

peculiar nature of English law, namely, its
judge-made character, it resulted in a firm
and permanent mass of law — of international
custom and practice explained by and based
on reason — which was destined to endure
and to be the guide and light of British, and of
American, judges to our own time.

One cause of Stowell's judicial influence
was his intuitive capacity to state legal pro-
positions or axioms on conduct in illuminating
phrases. Much has recently been heard of
the doctrine of continuous voyage, which has
certainly been carried beyond the range which
Stowell gave to it. But his decisions on this
subject, allowing for changes in modern
commerce, are sufficient to justify the modern
application of the principle to contraband.

Briefly stated, a voyage from A to C was
illegal, but a voyage from B to C was legal.
It is unnecessary to refer to the manner in
which the question arose out of certain regula-
tions in regard to trade between French and
Spanish colonies; the importance of it arises
in regard to the continuation of a voyage —
for in order to try to evade the law a vessel
sailing from A would unload the cargo at
B and then reload it, a further and additional
quantity perhaps being added. It was then
contended by the cargo owner that the voyage
was from B to C and therefore legal. The

ILLUSTRATIVE JUDGMENTS 57

question arose in the Prize Court — Was the
voyage from A to C a continuous transit ?
The test which Stowell applied was contained
in one of his felicitous phrases : " It is an
inherent principle . . . that the mere touching
at any port without importing the cargo into
the common stock of the country will not
alter the nature of the voyage which continues
the same in all respects and must be considered
as a voyage to the country to which the
vessel is actually going for the purpose of
delivering the cargo at the ultimate port." 1

The pregnant words, "importation into
the common stock of the country," have
become classical because they express so much
in a single phrase. The Supreme Court of
the United States incorporated them in a
unanimous judgment of that Court during
the Civil War. " Neutrals," said Chief Justice
Chase, " may convey in neutral ships from
one neutral port to another, any goods, whether
contraband of war or not, if intended for
actual delivery at the port of destination and
to become part of the common stock of the
country or of the port." 2 In the case of
the Kim Sir Samuel Evans observed : "As
to the real destination of a cargo, one of the
chief tests is whether it was consigned to the

1 The Maria, 5. C. Robinson, p. 364.
5 The Bermuda, 3. Wallace, p. 514.

58 LORD STOWELL

neutral port, to be there delivered, for the
purpose of being imported into the common
stock." * These historical words are, there-
fore, sufficiently extensive to cover in principle
the case of goods of a contraband character
passing through a neutral to a belligerent
country, provided that the port of discharge
is not to be considered as the ultimate destina-
tion. Stowell is careful also to use the words
" ultimate port," and if these be regarded as
containing the principle that the actual destina-
tion of the goods, be it a maritime port or an
inland city, is to be looked to, then Lord
Stowell's decision in effect covers the modern
development of the doctrine of continuous
voyage.2

Stowell was not the man to be bound by mere
precedents. If he had not possessed an ample
legal outlook and a good deal of confidence he
would never have been able to construct the
spacious legal structure which is his permanent
memorial. Under different conditions it is
certain that he would have applied accepted
principles of the law of nations to each new set

1 1. British and Colonial Prize Cases, at p. 481.

2 " That he [Stowell] did not regard a neutral destination of the
ship as conclusive against a condemnation of contraband goods on
board her appears in the Rapid, Edwards 228, which was the case
of a ship carrying a dispatch addressed to a hostile minister " (The
Collected Papers of John Westlake on Public International Law,
p. 466). It may be doubted if the Rapid has quite the effect which
the late Professor Westlake attaches to it, but his view is of interest
on the point of Stowell's probable action under modern conditions.

ILLUSTRATIVE JUDGMENTS 59

of circumstances, and have shown that the prize
law of Great Britain is capable, not less than
the common law, of an evolution which enables
it to correspond with contemporary needs.
Once, for example, that it is admitted that
a belligerent may prevent certain articles,
which are classed as contraband, from reaching
his enemy, it follows that he is entitled to
take such measures as will effect this object —
measures which are suitable to new conditions.
To confine principles to circumstances peculiar
to a past generation is in effect to negative
the application of those principles.1 It is one
of the advantages of a case law that it enables
such application to be made with less friction
than a rigid code.

The value of Lord StowelFs clarifying
capacity can best be understood by an illus-
tration from the case of the Emmanuel.2
The vessel in this affair was a neutral ship
carrying an enemy cargo and was captured
in the coasting trade of Spain, that is, of a
belligerent. The cargo having been con-
demned, the owner of the ship claimed freight
from the captors. The Judge first of all
considered the case on principle, and pro-
mulgated the general rule that " where a
capture is made of a cargo the property of

1 See Appendix II.
1 1. C. Robinson, p. 296 ; 1. English Prize Cases, p. 141.

60 LORD STOWELL

an enemy carried in a neutral ship, the neutral
shipowner obtains against the captor those
rights which he had against the enemy."
Then he stated the exceptions to this general
rule, one of which, it was contended, was the
fact that the vessel, as in this instance, was
engaged in the coasting trade of the enemy.
The authorities on the point were in conflict :
in three instances the Prize Court had decreed
payment of freight " under an intimation of
the very learned person who preceded me."
On the other hand " a case before the Lords
seems to convey a different opinion upon this
subject of the coast trade of the enemy, the
case of the Mercurius in which freight was
refused." Stowell decided the case before
him by refusing to allow the claim for freight,
but the judgment was not a bare determination
of the issue, it contained reasons for holding
that freight was not payable by the captor :
44 As to the coasting trade (supposing it to be
a trade not usually opened to foreign vessels),
can there be described a more effective accom-
modation that can be given to an enemy
during a war than to undertake it for him
during his own disability ? Is it nothing
that the commodities of an extensive empire
are conveyed from the parts where they grow
and are manufactured to other parts where
they are wanted for use ? It is said that

ILLUSTRATIVE JUDGMENTS 61

this is not importing anything into the country,
and it certainly is not ; but has it not all the
effects of such an importation ? Supposing
that the French navy had a decided ascendant,
and had cut off all British communication
between the northern and southern parts of
this island, and that neutrals interposed to
bring coals of the north for the supply of
the manufactures and for the necessities of
domestic life in this metropolis ; is it possible
to describe a more direct and a more effectual
opposition to the success of French hostility
short of an actual military assistance in the
war ? " 1

It may be that the reasoning which Stowell
applied to the case of a neutral vessel engaged
in the coasting trade (which was a more
distinct business in the eighteenth century
than it is in modern times) of a belligerent
might very well be applied to one trading with
the enemy at all. Be that as it may, StowelPs
decision in 1799 put the particular point be-
yond question for the immediate future at any
rate, and, under the circumstances, of the age.

No better example of the decisive and
determining effect of Sto well's judicial influence
could be noted than its effect on the law of
contraband. On no subject was there less
certainty, which was quite natural, for " two

1 1. English Prize Cases, p. 144.

62 LORD STOWELL

opposite tendencies have never ceased to divide
the world on the subject, the one pointing
to a more restricted prohibition of neutral
commerce, the other to a prohibition at once
larger and not definitely limited." * These
adverse views had been more than once
embodied in treaties, that of Whitehall between
England and Sweden in 1661 being the most
important from the point of view of a belli-
gerent. When Stowell took his seat in the Prize
Court, it had been established that certain
articles were unmistakably absolute contra-
band, but there was no little uncertainty in
regard to conditional contraband, and, what
was more important, there were not to be
found any decisions which, by laying down
definite rules, could be employed as tests on
application to given facts. Certain goods,
as oil and saltpetre, had been declared free
or confiscable, but without a word of elucida-
tion or reasoning.2 Within six months after
Lord Stowell had become Judge of the
Admiralty Court he had delivered a judgment
which went far beyond the actual articles —
cheeses — which were the subject of discussion.
The Judge first established the legal existence
of a class of goods which were conditional
contraband, and skilfully dwelt on the confusion

1 Westlake, International Law, Pt. II. p. 278.
• E.g. the St. Jacob, 1. English Prize Cases, p. 6 (oil, free) ;
the Jesus, 1. English Prize Cases, p. 6 (saltpetre, confiscable).

ILLUSTRATIVE JUDGMENTS 63

in which the subject was, at the moment,
involved. "If it could be laid down as a
general position, in the manner in which it
has been argued, that cheese being a provision
is universally contraband, the question would
be readily answered ; but the Court lays
down no such position. The catalogue of
contraband has varied very much, and some-
times in such a manner as to make it very
difficult to assign the reason of the variations,
owing to particular circumstances, the history
of which has not accompanied the history of
the decisions. In 1673, when many unwarrant-
able rules were laid down by public authority
respecting contraband, it was expressly asserted
by Sir R. Wiseman, the then King's Advocate,
upon a formal reference made to him, that
by the practice of the English Admiralty,
corn, wine, and oil were liable to be deemed
contraband. 4 1 do agree,' says he, reprobat-
ing the regulations that had been published,
and observing that rules are not to be so hardly
laid down as to press upon neutrals, 4 that
corn, wine, and oil will be deemed contraband.'
" These articles of provisions, then, were
at that time confiscable, according to the
judgment of a person of great knowledge and
experience in the practice of the Court. In
much later times many other sorts of provisions
have been condemned as contraband. In 1747,

64 LORD STOWELL

in the Jonge Andreas, butter going to
Rochelle was condemned ; how it happened
that cheese at the same time was more favour-
ably considered, according to the case cited
by Dr. Swabey, I don't exactly know. The
distinction appears nice ; in all probability
the cheeses were not of the species which is
intended for ship's use. Salted cod and
salmon were condemned in the Jonge Frederick,
going to Rochelle, in the same year. In 1748,
in the Joannes, rice and salted herrings were
condemned as contraband. These instances
show that articles of human food have been
so considered, at least where it was probable
that they were intended for naval or military

use.
it

I am aware of the favourable positions
laid down upon this matter by Wolfius and
Vattel, and other writers of the Continent,
although Vattel expressly admits that pro-
visions may, under circumstances, be treated
as contraband. And I take the modern
established rule to be this, that generally
they are not contraband, but may become
so under circumstances arising out of the
particular situation of the war or the condi-
tion of the parties engaged in it. The Court
must therefore look to the circumstances under
which this supply was sent."

Then the Judge goes on not to decide

ILLUSTRATIVE JUDGMENTS 65

abruptly, as his predecessors were in the habit
of doing, and without reason, that the articles
were not confiscable, but to propound a rule
by which the character of the article could
be judged. " The most important distinction
is whether the articles were intended for the
ordinary use of life or even for mercantile
ships' use, or whether they were going with
a highly probable destination to military use.
Of the matter of fact on which the distinction
is to be applied, the nature and quality of
the port to which the articles were going is
not an irrational test. If the port is a general
commercial port it shall be understood that
the articles were going for civil use, although
occasionally a frigate or other ships of war
may be constructed in that port. Contra,
if the great predominant character of a port
be that of a port of naval military equipment,
it shall be intended that the articles were going
for military use, although merchant ships
resort to the same place, and although it is
possible that the articles might have been
applied to civil consumption ; for it being
impossible to ascertain the final use of an
article ancipitis usus, it is not an injurious rule
which deduces both ways the final use from
the immediate destination ; and the presump-
tion of a hostile use, founded on its destination
to a military port, is very much inflamed if

66 LORD STOWELL

at the time when the articles were going a
considerable armament was notoriously pre-
paring, to which a supply of those articles
would be eminently useful. ..."

" Attending to all these circumstances, I
think myself warranted to pronounce these
cheeses to be contraband, and condemn them
as such." x

Stowell thus crystallized this rule of law in
this particular point, leaving it at once flexible
and clear. Are the articles " going with a
highly probable destination to military use " ?
It is this military use which makes them
noxious from the point of view of the belliger-
ent, and when this is clear the Court has no
difficulty ; but where the circumstances are
obscure then certain presumptions may be
decisive in affecting its decision. The law to
be applied in the future was thus rendered
clear not only for Great Britain but likewise
for the United States, which, says Westlake,
" maintain the British view on contraband
which they have inherited " — an inheritance
which was in a great degree made possible
by the decision by which in 1799 Stowell
illuminated the law.

On an earlier page (p. 32) the subject of
joint capture was enumerated as one of those

1 The Jonge Margaretha, 1. C. Robinson, 189 ; 1. English
Prize Cases, 100.

ILLUSTRATIVE JUDGMENTS 67

which fall within the jurisdiction of the Prize
Court. Stowell was never more at home
than in deciding between the rival claims of
gallant seamen, to whom his decision was
often of no little pecuniary importance ; for a
share in a rich prize meant that a substantial
sum of money passed into the pocket of the
commander of a ship, of a ship of the Royal
Navy, and lesser amounts into those of his
subordinates. In these cases Stowell always
endeavoured, as was his wont, to enunciate
some principle, so that a single decision
frequently governed other disputes arising on
somewhat similar facts. A case called the
Forsigheid 1 is an excellent illustration. This
vessel was actually captured by a ship of
war called the Dictator and other vessels ;
another detachment of the Admiral's fleet
was eight miles distant, but, owing to fog, was
not in sight of the actual captors when the
enemy vessel surrendered. Still they claimed
to be entitled to a share of the booty. The
Judge laid down that when vessels are associated
together by public authority the whole fleet
is entitled to share in the proceeds of the
capture, although some of them might be out
of sight at the time. " The fleet so associated
is considered as one body, unless detached by
orders, or entirely separated by accident, and

1 8. C. Robinson, 811.

68 LORD STOWELL

what is done by one, continuing to compose
in fact a part of that fleet, enures to the
benefit of all." No accidental separation was
suggested in the Forsigheid, and Stowell
decided that the whole fleet was therefore
entitled to share, as well as those in sight at
the time of capture. Decisions such as this
made the name of Stowell a familiar word in
every British ship of war; for the judgments
that he gave on the thorny subject of joint
capture were based on principles of equity
and on common sense, so that they commanded
general approval in the fleets.

These decisions have now lost their legal
value, but they are still interesting reading;
for they are concise descriptions of stirring,
if forgotten, incidents in the maritime warfare
at the end of the eighteenth century, the
smaller details of which have been necessarily
overshadowed by great encounters. They tell,
in fact, of the constant encounters which made
up the daily life of the Navy in time of war.
They are not less illustrative of Stowell's
judicial sagacity. They were, too, of com-
mercial importance; for privateers were fitted
out by the merchants of Liverpool and of
Bristol as business speculations, and the result
of a judgment of Stowell might, therefore,
make all the difference between a fortunate
and a disastrous venture. They had some-

ILLUSTRATIVE JUDGMENTS 69

times even a larger application ; for a decision,
for instance, which stated a general rule that
the being in sight by a privateer of a capture
by a ship of war did not entitle a privateer to
share in the prize, settled the claims of many
owners and crews of private ships of war, and
prevented a maritime practice by small priva-
teers of hanging on His Majesty's ships to
pick up the crumbs of the captures. In fact,
Stowell had to act as a kind of dispenser of
discipline over the numerous brave and not
too scrupulous privateers.

CHAPTER VI

THE STOWELL CASE LAW AND THE
DECLARATION OF LONDON

IT has already been observed (ante, p. 38)
that one important result of Stowell's work
was to assimilate British prize law in form and
in character with English municipal law, and
to impress on it some marked national features.
During the Crimean War of 1854 this body of
law, formulated by Stowell, was tested, ap-
proved, and enlarged by a later generation of
lawyers, so that at the beginning of this century
Great Britain was the only Power which pos-
sessed a complete system of prize law at once
reasoned, definite and well tried — one which
was in harmony with the national traditions of
English jurisprudence, and easy of application
to facts.

One must now mention that in 1907 there
had assembled at the Hague an official inter-
national gathering known as the second Peace
Conference, which approved the creation of an
international Court of Appeal.

70

THE STOWELL CASE LAW 71

The seventh article of the Convention, which
was a result of this meeting, states that when,
in any particular case brought before the
International Court, the question at issue is
not governed by a treaty binding upon the
parties, the Court " shall apply the rules of
international law. If no generally recognized
rules exist, the Court shall give judgment in
accordance with the general principles of justice
and equity." A stipulation of this nature was
unanimously decided by all the Powers repre-
sented at the second Peace Conference to be
an essential feature of any system of inter-
national jurisdiction in matters of prize which
could have practical value.1

Though obviously a Court composed of
jurists of different nationalities needed some
definite code of law, if it was to be of practical
use, yet it was equally clear that this mis-
cellaneous Court would not be guided by
British prize law, which was in effect the only
systematic and authoritative prize law in
existence. Thus, rightly or wrongly from a
British point of view, the next step was to
formulate the rules of international law re-
lating to prize, and to arrive " by common
agreement at a uniform definition of the main
principles of the existing law to whose spirit

1 Correspondence and Documents respecting the International
Naval Conference, held in London, December 1908-February 1909,
p. 20.

72 LORD STOWELL

all nations are without doubt anxious to
conform." 1 For this purpose an international
Conference assembled in London in 1908 and
1909, which produced the instrument which,
under the title of the Declaration of London,
has since been so much and so often discussed
and criticized.

The Preliminary Provision of the Declara-
tion of London stated " that the Signatory
Powers are agreed that the rules contained in
the following chapters correspond in substance
with the generally recognized principles of
international law." But the Declaration was
not ratified by Great Britain — the causes of this
non-ratification it is unnecessary to discuss,
for it is the position of the Stowell case law
vis-a-vis the Declaration of London which is
of practical and juristic interest in these pages.

It is unquestionably remarkable that a
nation with a body of prize law such as Great
Britain possessed, which was binding on every
Prize Court within the world -wide British
dominions, should, whatever were the motive,
have so lightly set forth to supersede it by a
new code of rules, which were, in form, at
variance with the general body of English law,
and which were necessarily less adaptable to
variable groups of facts than the decisions of
the Stowell system, under which, for practical

1 Correspondence, p. 22.

THE STOWELL CASE LAW 73

purposes, must now be included subsequent
decisions of the Prize Court and of the Privy
Council, — those which were delivered during
the Crimean War. For a code has an apparent
clearness only, since it is a bald and necessarily
brief statement of legal conduct, and not an
enunciation of reasons in consequence of which
a certain line of conduct is declared to be legal
or illegal. It cannot therefore, except in
reference to a limited number of facts, be as
effective a legal instrument as a series of judicial
precedents the reasons for which can be applied
to new and unexpected groups of facts.

The pontifical announcement of the legal
truth of the Declaration of London contained
in the Preliminary Provision has been quoted ;
it was a singular statement, because in many
parts the rules which were formulated were
the results of a compromise. In spite of it,
however, the non-ratification of this instru-
ment rendered the Declaration of doubtful
legal value. " As an article of the Declaration
it has no force," l said Sir Samuel Evans.
" The matter stands in this way. The De-
claration of London, 1909, is not a binding
document on any of the nations of the world,
and when the war broke out the matter was
at large." 2 Accordingly, soon after the out-

1 The Sorfareren, 1. British and Colonial Prize Cases, p. 589.
* Sir John Simon, A.-G., in the Katwyk, 1. British and Colonial
Prize Cases, p. 282.

74 LORD STOWELL

break of war an Order in Council 1 kt adopted
and put in force " the Declaration with certain
important additions and modifications. The
accuracy of the Preliminary Provision was
thus at once contradicted and the legal
authority of the Declaration was weakened.
In a country in which administrative Orders
can be regarded as valid without question, no
criticism could be levelled against an instru-
ment so promulgated. But the Order in
Council of October 1914, by throwing over one
part of the Declaration of London, cast a
doubt on every part which could not in itself
be supported by some authority. The first
Order was followed by further variations of
the Declaration.2 Next came the almost
dramatic refusal of the Government to regard
the Declaration as possessing any official
weight. " He had constantly," said the Under-
secretary for Foreign Affairs (Lord Robert
Cecil) in the House of Commons on March 9,
1916, " told the House that in his view the
Declaration of London as an instrument had

1 Order in Council adopting during the Present Hostilities
the Provisions of the Convention known as the " Declaration of
London," with Additions and Modifications, Manual of Emergency
Legislation, 1914, p. 143.

2 Order in Council, October 29, 1914, Manual of Emergency
Legislation, p. 78.

Order in Council, March 30, 1916. In this Order it is stated that
it is no longer expedient to adopt Art. 19 of the Declaration of
London, and that doubts have arisen as to the effect of Art. 1 of
the Order of October 1914.

THE STOWELL CASE LAW 75

no binding force whatever. Certain parts of
it had been selected by the Government of the
day on the outbreak of war as embodying
what they believed to be the principles of
international law between belligerents and
neutrals, and they thought it convenient to
refer to the Declaration as embodying those
principles ; but the Government never in-
tended— certainly the present Government did
not intend — to be bound by the Declaration
of London apart from and so far as it differed
from the principles of international law which
prevailed at the time of the outbreak of the
war. There was much doubt among lawyers
whether the issue of an Order in Council stating
that the Government intended to adopt the
Declaration of London would bind the Prize
Court, and whether that Declaration contained
principles which were not in accordance with
the principles of international law ; but
whether that were or were not so, the policy
of the Government was to abide by the prin-
ciples of international law, whether they were
in our favour or not, and to adhere to them
and to them only. Only so far as the Declara-
tion embodied those principles had the Govern-
ment any intention of being bound by it." 1

1 While this book was passing through the Press, it was officially
announced that the British and French Governments would no
longer continue their partial adoption of the Declaration. See
Order in Council, 8th July 1916.

76 LORD STOWELL

The Declaration also received a severe
blow from the Privy Council,1 which decided
that a proposition of prize law could not be
declared by an Order in Council to be bind-
ing on the Prize Court, and that this Court
must base its decisions on the law of nations.
For the purposes of the Prize Court the
Stowell case law may be regarded as embody-
ing the law of nations in relation to such
facts as Stowell's decisions cover or to which
they can now be applied. They may, like
all other decisions, be, as the phrase is, " dis-
tinguished " — in other words, be found by
the tribunal which is examining them not
to be applicable to the case under discussion.
But speaking broadly, the case of the Zamora,
which will become historical, is a strong support
to British case law as embodied in the decisions
first of all of Stowell and subsequently in those
of Dr. Lushington and Sir Samuel Evans, not
to speak of the Privy Council, and a blow to
the Continental system of enunciating law by
administrative decrees. When, in 1811, the
subject of the validity of Orders in Council
was argued before Stowell, he ingeniously
evaded any difficulties by assuming that the
Order in Council which was relevant to the
facts of the case was in accordance with inter-
national law,2 though he also stated a dictum

1 The Zamora, 2. British and Colonial Prize Cases, p. 1.
3 The Fox, Edwards, p. 311 ; 2. English Prize Cases, p. 61.

THE STOWELL CASE LAW 77

as to the legislative rights of the King in
Council which the Judicial Committee in the
Zamora regarded as erroneous. Of course, if
an Order in Council were based on an invulner-
able decision of S to well, or on an admitted
principle of the law of nations not contained
in a judgment of the Prize Court, it could not
be impugned in the Prize Court, not because
of its administrative character, but because it
stated a legal truth.

The episode of the Declaration of London —
and it is in the history of English prize law
only an episode — has been briefly sketched not
for the purpose of giving a narrative of this
instrument itself and of the discussions which
it has raised, but because of its importance in
relation to the history of the Stowell case law.
We have seen a Utopian and unpractical start,
an apparent completion of an ideal, then the
shock sustained by an academic structure
suddenly plunged into the area of a state of
war. We must add that we have also seen the
Declaration of London finally and authorita-
tively reduced to the position of a mere com-
pendium, the several parts of which are
valuable to a British Prize Court only so far
as they embody the principles of the law of
nations which have to be ascertained by the
Prize Court.1

1 In the Lorenzo, 1. British and Colonial Prize Cases, p. 226, the

78 LORD STOWELL

It is of some interest and importance to
observe how the Declaration of London has
fared in the Prize Court before Sir Samuel
Evans. In three only of the decisions re-
ported in the first volume of the British and
Colonial Prize Cases of the Prize Court in
London has the Declaration of London been
discussed. In one, it was held that Article 43
was not applicable to contraband goods which
were enemy property, and that it had therefore
no bearing on the facts before the Court.1 In
an earlier decision it was held that a neutral
vessel sailing from a neutral port with goods
which became contraband after the date of sail-
ing was entitled to freight.2 In this instance
the decision was based on a general principle,
which can be found in many decisions of
Stowell, that when there is no delictum or
guilt in a claimant he cannot be deprived of
his rights. In the Kim 8 the Order in Council
of October 29 was regarded as enlarging the
presumptions contained in Article 34 of the

Prize Court of St. Lucia condemned an American steamer under
Article 40 of the Declaration of London. In the Hakan (July 3,
1916) Sir S. Evans condemned a Danish vessel, not on Article 40,
but on the ground that international law had changed on this point
since the decision of Lord Stowell in the Ringende Jacob (1. C. Rob.
p. 89 ; 1. English Prize Cases, p. 61). The rule of Article 40 was
not based on any principle, and the question by it was reduced to
one of a mere rule of thumb.

1 The Sorfareren, 1. British and Colonial Prize Cases, p. 589.

2 The Katwyk, 1. British and Colonial Prize Cases, p. 282.

8 The Kim, 1. British and Colonial Prize Cases, p. 405, at p. 484.

THE STOWELL CASE LAW 79

Declaration of London, which in fact only
created certain presumptions upon which the
Court might act — that is, it varied the rules of
evidence, not of international law. The un-
modified Declaration of London might there-
fore, it is obvious, for all practical purposes
have just as well been non-existent in August
1914, for all the influence it has had on the
decisions of the British Prize Court in London.
It may be observed, though it is somewhat
outside the range of this volume, that the
Declaration of London has, on the other hand,
been frequently referred to in the French Prize
Court, which, as previously stated, has no
definite body of law by which it is guided. In
accordance with the usual practice in French
procedure, the judgment commences with a
preliminary recital, and in this, in many in-
stances, appropriate articles of the Declaration
are enumerated. Unquestionably as an addi-
tion to French prize law, the general state of
which was described on an earlier page, the
Declaration of London has been of value, and
may now be regarded as containing many of
the principles of that law, but, as the reader
will by this time have realized, the state of the
English and French prize laws in August 1914
was entirely different.

CHAPTER VII

THE STOWELL CASE LAW IN THE GREAT
WAR

FROM the Declaration of London we must
turn to the last phase in this impression of
the judicial work of Lord Stowell in the Prize
Court.

When war was declared on August 4, 1914,
by Great Britain against Germany, it was
but a year short of a century since the second
Treaty of Paris, when Lord StowelPs judicial
work in the Prize Court came to an end.
One need not emphasize the differences which
exist between maritime trade and international
commerce at the beginning of the twentieth
and of the nineteenth century. Nor is it
necessary to dwell on the changes which have
occurred in English law and procedure, or on
the characteristics of modern English judica-
ture as compared to those of a century ago.
Unquestionably, however, there could be no
sharper test of the value of Stowell's work
than the manner in which it responded to the

80

THE STOWELL CASE LAW 81

examination of advocates and of the Bench
during the present war. Through this it has
passed with increased reputation, and it
remains still the basis of English prize law,
with its value enhanced in consequence of
the respect which has attached to a decision
of Stowell which in any way confirms or
elucidates a judgment either of the Prize
Court or of the Privy Council. It is further
a tribute to Lord Stowell' s sagacity, and to
the form in which his decisions were conveyed,
that they have been applicable to changed
mercantile conditions. His judgments keep
pace with us, they are archaic neither in reason-
ing nor in manner, they are, in fact, modern
because they are true.

As this is not a treatise on prize law it is
necessary only to examine in a few instances
the relations between StowelFs decisions and
those of the Prize Court in the present war.
In 1804, for example, Stowell laid down an
important and far-reaching principle — that the
Prize Court would not recognize liens on an
enemy vessel, and that consequently in the
case before him the holder of a bottomry
bond had no right to claim in the Prize Court
against the proceeds of a captured vessel.1
Bottomry bonds in the eighteenth century

1 The Tobago, 5. C. Robinson, p. 218 ; 1. English Prize Cases,
p. 456.

G

82 LORD STOWELL

and in the early years of the nineteenth century
were documents of much maritime importance
— they were charges on a ship, and the holder
of them had a lien or claim on the vessel for
the sum of money which he had advanced.
Under the name of respondentia bonds they
were charges on cargoes. To-day one and
the other have almost disappeared, for com-
munication over all parts of the globe is so
rapid that quicker methods have been reached
for advancing money to the masters of vessels
in distant parts of the world.

In connection with cargoes modern com-
merce has developed a far-reaching system
of advances by bankers on the security of
bills of lading. Cargoes are mortgaged to
bankers, who thus finance sellers long before
the cargo is actually delivered ; millions are,
in fact, lent on this form of security. The
object of these transactions differs entirely
from that of the old-fashioned advance on
bottomry or respondentia bonds to a master
of a ship who is without money in a distant
part of the world. But the result of the
transaction is the same : it creates a creditor's
lien on the cargo. In these circumstances
Lord StowelFs principle was sharply tested.
In the case of the Odessa 1 the claimants were
bankers who had accepted bills of exchange

1 1. British and Colonial Prize Cases, pp. 163, 554.

THE STOWELL CASE LAW 83

in favour of the sellers against the cargo, and
received the bills of lading as security for the
acceptances and for the money paid under
them. This was evidently the kind of case
in which decisions so mature as the Tobago,
and of the Marianna? which followed the
earlier case, were certain to be attacked as
inconsistent with modern commercial practice.
The first words of the counsel for the claimants
were on these very lines : " This case is of
the first importance, as the bill of exchange
on London is the general means all over the
world of financing the owner of any cargo
during its carriage ; and bankers would have
been in consternation if they had thought
that in case of war their security would be
gone." In spite of this protest the doctrine
laid down by Lord Stowell was upheld by Sir
Samuel Evans in the Prize Court and on appeal
by the Privy Council. This tribunal more
especially boldly based its decision on Lord
Stowell's judgments in the Tobago and the
Marianna. " The case of the Tobago is in
point," said Lord Mersey in the judgment
which he delivered for the Court. Lord
Stowell, after observing that the contract
of bottomry was one which the Admiralty
Court regarded with great attention and
tenderness, went on to ask : " But can the

1 6. C. Robinson, p. 24 ; 1. English Prize Cases, 518.

84 LORD STOWELL

Court recognise bonds of this kind as titles
of property so as to give persons a right to
stand in judgment and demand restitution of
such interests in a Court of Prize ? " and he
states that it had never been the practice to
do so. He points out that a bottomry bond
works no change of property in the vessel,
and says : " if there is no change of property
there can be no change of national character.
Those lending money on such security take
this security subject to all chances incident
to it, and amongst the rest, the chances of
war." Throughout the case the principles
and their general application, as they are
found in the judgments of Lord Stowell, were
approved and the law as formulated by him
was agreed to by Sir Samuel Evans and the
Privy Council.

While these present-day decisions are a
remarkable tribute to the permanent value
of Stowell's judgments, one does not feel so
sure that, under the altered circumstances of
the age, he might not now have found some
ground by which to limit the effect of his
previous judgments. It is common knowledge
that in the present war an official Committee
has investigated claims, which have been
rejected by the Prize Court, of those persons
or firms, British or neutral, who have advanced
money on enemy goods in the ordinary course

THE STOWELL CASE LAW 85

of business, that it has recognized in certain
cases their claim, and that orders have been
made by it for the payment of such claim out
of the prize fund. It is not wholly satisfactory
that — as the case is — the decision of the
Prize Court should be considered as legally
sound but indefensible from the point of view
of commercial equity. In StowelPs time in
most cases of capture the proceeds passed into
the pockets of the captors, and it was largely
to protect the captors, whose claim would have
been defeated by the recognition of liens, that
Stowell decided against such claims. But
to-day the proceeds of prize — both of captures
at sea and of Droits of Admiralty — fall into
the Exchequer. One day therefore the Crown
successfully opposes claims in the Prize Court,
on another outside the Court it amicably
recognizes them.

The continuity of British prize law as
formulated by Stowell was, at any rate, sus-
tained, and the flexibility and adaptability
of the English juridical system was once more
demonstrated.

This is but one example of the vitality of
StowelPs work, which was again shown in the
Roumanian,1 in which case his decisions were
relied upon both by Sir Samuel Evans and
by the Privy Council. One of the main

1 1. British and Colonial Prize. Cases, pp. 75, 536.

86 LORD STOWELL

questions in this case was whether oil, which
was admittedly enemy property and which
had been landed at the instance of the Customs
authorities, was the subject of prize, since it
had not been seized at sea but when in tanks
on land. Here again the luminous statements
of Stowell in the Two Friends 1 and the Progress 2
were followed. " In neither case," to use
Lord Stowell's expression, " was the con-
tinuity of the goods landed as cargo in any
way interrupted." It was thus in fact a
maritime seizure.

It has now been shown how, in two cases,
in which questions of prize law widely apart
were raised, the authority of Lord Stowell
was regarded as of preponderating weight.
A third instance,3 which differs altogether
from those previously selected, may be given
in which the point was whether or not Russian
shipowners, subjects of an allied Power, were
entitled to claim from the Crown, as captors,
freight upon the enemy cargo which was
carried in their ship under a charter with a
German firm. Sir Samuel Evans held that
the reasons against this claim could not be
more clearly enunciated than by a quotation
from a judgment of Lord Stowell, it is grounded
on broad principles which could be applied

1 1. C. Robinson, p. 271 ; 1. English Prize Cases, p. 130.

2 Edwards, p. 210.
8 The Parchim, 1. British and Colonial Prize Cases, p. 579.

THE STOWELL CASE LAW 87

to facts as they arose. This decision he in
fact incorporated with ,and made the basis of
his own decision. " The general principle,"
he said, " is nowhere better stated than by
Lord Stowell in the Neptunus : 4 It is well
known that a declaration of hostility naturally
carries with it an interdiction of all commercial
intercourse ; it leaves the belligerent countries
in a state that is inconsistent with the relations
of commerce. This is the natural result of a
state of war, and it is by no means necessary
that there should be a special interdiction of
commerce to produce this effect. At the
same time it has happened, since the world
has grown more commercial, that a practice
has crept in of admitting particular relaxa-
tions ; and if one State only is at war, no
injury is committed to any other State. It is
of no importance to other nations how much
a single belligerent chooses to weaken and
dilute his own rights. But it is otherwise
when allied nations are pursuing a common
cause against a common enemy. Between
them it must be taken as an implied, if not
an express contract, that one State shall not
do anything to defeat the general object. If
one State admits its subjects to carry on an
uninterrupted trade with the enemy, the con-
sequence may be that it will supply that aid
and comfort to the enemy, especially if it

88 LORD STOWELL

is an enemy depending, like Holland, very
materially on the resources of foreign commerce,
which may be very injurious to the prosecu-
tion of the common cause and the interests
of its ally. It should seem that it is not
enough, therefore, to say that the one State
has allowed this practice to its own subjects ;
it should appear to be at least desirable that
it could be shown that either the practice is
of such a nature as can in no manner interfere
with the common operations, or that it has
the allowance of the confederate State.' '

Further instances in the same sense might
be multiplied ; it is sufficient to give one in
addition to those already collected. In this
the point of law was short, namely, whether
the Crown as captor of a ship was entitled to
freight.1 Here again an extract from the
judgment of Sir Samuel Evans without com-
ment will suffice : " The Crown claim to have
a lien for the freight alleged to be payable in
respect of the portion of the cargo released,
and to have it paid before the release. The
argument on behalf of the Crown is that the
shipowners are, by the German commercial
law, entitled to some freight in respect of this
released cargo, although it was not, and
cannot be, delivered in Germany at the port
of destination, and that as captors they are

1 The Roland, 1. British and Colonial Prize Cases, p. 188.

THE STOWELL CASE LAW 89

entitled to what the ship has earned as well
as to the ship herself." This sounds quite
logical, but the practice of Prize Courts (which
has to deal with multifarious business affairs)
shows that, although substantial justice is
done, the results of what strict logic may
appear to involve cannot always be attained.
The old rule as to whether captors of an enemy
vessel were also entitled to freight was quite
clear.

Whenever a captor brought goods to the
port of actual destination according to the
intent of the contracting parties, he was held
entitled to the freight, on the ground that
the contract had been fulfilled, but in all other
cases he was held not entitled to freight,
although the ship might have performed a
very large part of her intended voyage.

The rule was laid down in the Fortuna
(1802) (4. C. Robinson 278 ; 1. Eng. P.C. 392)
and the Vrouw Anna Catharina (1806) (6. C.
Rob. 67 ; 1. Eng. P.C. 552) ; and some excep-
tions which emphasized the rule were dealt
with in the Diana (1803) (5. C. Rob. 67 ; 1.
Eng. P.C. 424) and the Vrouw Henrietta
(reported in a note to the Diana at p. 75, and
in 1. Eng. P.C. at p. 427).

No examples than those which have just
been given could more clearly illustrate the
fundamental position which Lord StowelPs

90 LORD STOWELL

decisions occupy at the present day not only
in British prize law but in that of the United
States. In England they take the place
which Government regulations hold in con-
tinental Courts, as, for example, in German
prize law. " Since it had to be decided that
the entire cargo of the vessel was subject
to seizure as conditional contraband and to
confiscation (Prize Order No. 42), the vessel
was consequently also liable to be held up
according to Prize Order 39 and confiscated
as per Prize Order No. 41, Part 2." 1 This
extract from a judgment of the Hamburg
Prize Court shows how administrative decrees
are used in the German Prize Courts. Whether
they are in accordance with the provisions of
international law is immaterial to the tribunal ;
what is written is accepted as law, whether
sound or unsound, whether just or unjust.

The various results, political, economical,
and legal, of the great war of the twentieth
century will hereafter be chronicled by future
historians. To the critical observer of English
jurisprudence and of international law, it is,
however, already sufficiently clear that the
great achievement of Stowell, the several
characteristics of which have been considered
in the preceding pages, has, during the course

1 The Cocos, Hamburg Prize Court, December 11, 1915 ;
Lloyd's List Reports, January 26, 1916.

THE STOWELL CASE LAW 91

of the war, been at once tested and justified,
and that it remains fixed more firmly than
ever as the corner-stone of one branch of
British jurisprudence.

Many reasons will have occurred to the
reader for this result ; they are, however, most
clearly understood if we apply to the Stowell
case law the test formulated by an eminent
English jurist of our own age, that is to say,
a modern test. " From the Peace of West-
phalia," wrote Professor Westlake, " to the
present day the great desideratum of inter-
national law has been the union of reason and
custom in a satisfactory body of rules, satis-
factory in the sense in which alone the term
can be applied to arrangements made or
accepted by man, as supplying a system
capable of being put in practice under actual
conditions and fairly meeting the needs
which arise from them, without excluding im-
provement, or modification to suit changed
conditions." * The Stowell decisions are " a
satisfactory body of rules," they are " a system
capable of being put in practice under actual
conditions," they do " fairly meet the need "
which arises from such conditions, and they
do not exclude either improvement or modifica-
tion under changed conditions.

1 The Collected Papers of John Westlake on Public International
Law, p. 66.

92 LORD STOWELL

The preceding review of Stowell as a man
and as a judge necessarily concludes with
this note of the present authoritative position
of the Stowell case law. It suggests, however,
one or two further considerations. It is clear
that an international Court of Appeal for
prize cases is outside the range of possibility.
The treatment of ships or goods taken as
prize is admittedly a matter for national
action in the prize tribunals of the belligerent
powers. In England that action is based on
a well established body of law administered
in a judicial manner — more judicially than in
any other European country, because the
Court possesses reasoned and recorded pre-
cedents to guide it, and pronounces reasoned
and recorded judgments. Under such circum-
stances no necessity exists for an appeal from
a national to a non-national Court, an appeal
which the experience of the present war shows
would, even assuming the procedure to be
organized, cause infinite delay and immense
practical inconvenience both to neutral
subjects and to the British Government.
Apart, however, from this important considera-
tion, it is certain that, since the Stowell case
law, as administered and applied by Sir Samuel
Evans and by the Judicial Committee of the
Privy Council, has been found to form an
admirable basis for many modern decisions,

THE STOWELL CASE LAW 93

no administration could now venture to super-
sede it, and such supersession is a condition
precedent to the work of an international
Court of Appeal. An assimilation of the prize
law of other European countries to that of
Great Britain can in the future only be
obtained by the international recognition, as
expressions of the law of nations, of particular
reasoned British precedents, which have been
increased in value and number since the out-
break of the war in August 1914. This is a
course which can scarcely be regarded as
probable unless it can be accomplished by a
diplomatic arrangement. Be that as it may,
it is unquestionable, from the experience of the
present war, that this country will never consent
to part with a body of law which has been so
well tested as that which Stowell may be said,
for all practical purposes, to have created, and
which has continued to be applied impartially
in the same spirit of justice as animated the
famous jurist who presided over the British
Prize Court at the end of the eighteenth
and at the commencement of the nineteenth
centuries.

CHAPTER VIII

STOWELL AS JUDGE OF THE HIGH COURT
OF ADMIRALTY

THIS book is in the main concerned to give an
impression of the personality of Stowell, and to
reduce into some form the effect and the manner
of his work as judge of the English Prize Court.
It would, however, leave an inadequate idea
of StowelFs wide judicial powers on the mind
of the reader if a short space were not allotted
to his achievements as an Admiralty judge.
Though the Instance or civil jurisdiction of
the Admiralty Court is primarily of limited
and technical interest, it possesses also some
international importance, for the Admiralty
Court adjudicates on disputes between ship-
owners, underwriters, and mariners of all
nations, and in mercantile estimation it stands
higher than any other similar tribunal in the
world.

Just as Stowell's long tenure of office as
a judge of the Prize Court enabled him to im-
press his individuality on English prize law,

94

STOWELL AS JUDGE 95

so the same cause gave him the opportunity
of enunciating many important principles of
purely maritime law with a breadth and
lucidity which made them basic factors in the
further development of British maritime law.
Some only of these great judgments can be
referred to in these pages, but a few illustrative
examples will establish the place which Stowell
holds in the development of English maritime
law.

It is one thing to decide a particular point,
it is another to explain the principles on which
the decision rests, and to apply them to facts
of the case under discussion, so that the latter
may serve as an illustration of an abstract
proposition. It was this rare gift which Lord
Stowell possessed, and it is conspicuous when
some of his most remarkable judgments are
examined. It would not be easy to find one
which better serves as an example than the
decision in 1801, in the case of the Gratitudine.1
The result of that judgment was the creation
of the rule of law that the master of a vessel
in a foreign port has power to bind the cargo
on board by a respondentia bond, in order to
obtain money to enable the vessel to prosecute
her voyage. That rule has never since been
questioned, and until steam, telegraphs, and

1 3. C. Robinson, p. 240. Some of these examples are substantially
reproduced from my book, The Growth of English Law, London, 1913.

96 LORD STOWELL

improved postal communication lessened in
recent years the necessity for obtaining money
by the hypothecation of ships and cargo, it
was one of wide commercial importance. The
legal power of the master to enter into a bond
depended on his relationship to the owners of
the cargo, and, therefore, Lord Stowell had, in
order to establish a rule upon the point, to
consider when, and under what circumstances,
the master of a vessel became by virtue of
necessity the agent for the owners of the cargo.
Having established as a legal proposition that
in cases " of instant, and unforeseen, and un-
provided necessity, the character of an agent
is forced upon him, not by the immediate act
and appointment of the owner, but of the
general policy of the law," and having illus-
trated the rule by examples, Lord Stowell then
applied it to the circumstances under which
it may be necessary to borrow money, not only
on the security of ship and freight, but also
on that of the cargo. Satisfied as to principle,
the judge examined the authorities to discover
what light might be thrown by them on the
subject. These authorities were not only dicta
to be found in English law, but the mediaeval
codes, which have been preserved to modern
times. The examination completed, Lord
Stowell proceeded to consider whether the
situation of the master was such in the case

STOWELL AS JUDGE 97

before him as to authorize the exercise of this
power. This particular case illustrates very
well the peculiar and unique place which
Lord Stowell holds in the history of English
mercantile law as the formulator and the
applier of legal principles. At the time of this
judgment there was no reasoned decision on
this question, one, as Stowell said, of extreme
importance. Certainly, as he also pointed out,
there existed a mercantile practice by which
bonds given on the security of the cargo were
regarded as valid, and there were instances
of legal proceedings on such bonds. But the
basis of this validity had never previously
been judicially stated, so that until the decision
in the Gratitudine it could not be said that
there was any defined, precise, and reasoned
enunciation of the legal foundation of a rule,
which, in the circumstances of the eighteenth
century, was of such far-reaching importance
to the mercantile community.

This judgment has been referred to because
it establishes a definite proposition of maritime
law: it enunciates the principle on which it
is based, and it has ever since been rightly
regarded as an admirable and conclusive ex-
position of the duty of a ship-master in relation
to the interests of the owners of cargo under
extraordinary circumstances. As such its

direct and indirect influence on the whole body

H

98 LORD STOWELL

of English maritime law has been marked and
important.

There is no branch of law of which the basis
is now more thoroughly fixed than that of
Salvage. For the earliest and clearest enuncia-
tion of many of its principles the judgments
of Lord Stowell must still be studied, contain-
ing as they do the principles which have guided
his successors and have established the law.
For example, from time to time seamen fall
in with derelict vessels. When they bring
such ships into a place of safety, saving them
from certain loss, they are clearly entitled to
a high reward, to the value, indeed, of a large
proportion of the property saved, though not
necessarily to one half of its value. This was
the effect of Lord Stowell's decision in the
Aquila 1 so long ago as 1798, a decision
which from that time forth became the leading
authority on this particular point. Sixty-
eight years afterwards, in the case of the True
Blue* the same point was pressed on the
attention of the Court. But the tribunal
considered that it was sufficient to refer to
Lord Stowell's early decision, to take note of
his research into the older authorities, and of
his conclusion that the proper mode of deciding
the question of the amount of reward to be

1 1. C. Robinson, p. 87.
2 Law Reports : 1. Privy Council, p. 250.

STOWELL AS JUDGE 99

given to salvors of a derelict vessel was " to
consider all the circumstances, including the
value of the property salved, and the risk to
the property of the salvors."

Nor would it be easy to find a principle of
salvage law more necessary for the interests
of shipowners, and of those honestly desirous
of rendering assistance to vessels in distress
on reasonable terms, than that men who have
taken possession of a ship as salvors have a
legal interest in her which cannot be divested
until an adjudication takes place in a court
of competent authority. A second band of
salvors therefore has no right to take away
from men who are doing their best to save life
and property the opportunity of earning a
reward, unless it be apparent that these efforts
are obviously powerless to effect their object.
Twice Lord Stowell laid down these rules with
emphasis and clearness ; so that from the date
of the two decisions — one in 1809, the Maria,1
and the other in 1814, the Blenden Hall 2 — this
proposition has been a clear rule of maritime
conduct. One notes, as showing the character
of naval life at the time of these cases, that in
both instances those whom we may call the
piratical salvors — the second band who tried
to dispossess those who had first tendered their
services — were officers and men of the Royal

1 Edwards, p. 177. 2 1 . Dodson, p. 418.

100 LORD STOWELL

Navy, proving that sometimes, at the beginning
of the nineteenth century, the wild and un-
scrupulous daring of the Elizabethan seamen
was emulated by their modern successors.

Leaving this subject, though the various
decisions in which Lord Stowell built up the
modern law of salvage are far from exhausted,
one may pass on to his judgment on the question
of the sailor's lien on the ship for wages. The
judgment delivered in the case of the Neptune,1
in 1824, stands out just as remarkably as the
decision in that of the Gratitudine, expound-
ing and laying down as it does a principle of
maritime law of vital importance. In the first
place, it diminished largely the effect of the old
maritime rule that freight is the mother of
wages, confining that maxim to cases where
a vessel has wholly perished. It also, while
laying down the principle that a seaman has a
lien on the ship on which he has served to the
last plank, expanded it, so that while it gave
him this privilege it prevented him from be-
coming entitled to any reward as a salvor.
Lord Stowell viewed the matter from no narrow
standpoint, and he decided the first point on
the ground that " private justice and public
utility range themselves decidedly on that
side of the question which sustains the claim
of the mariner." To have held, however, that

i I. Haggard, p. 227.

STOWELL AS JUDGE 101

a crew bound to do their utmost in the service
of the owner if the ship is in peril, should be
able to assume the character of salvors, so that
in time of danger they should be seeking for
extra remuneration, would obviously have
dealt a blow to the sense of duty of seamen,
and would have given opportunities for gross
frauds on owners of vessels by unscrupulous
officers and crews.

At the present time the increase of maritime
commerce and of the size of vessels has very
greatly increased the litigation arising out of
collisions at sea and in port. The decision of
such cases depends for the most part mainly
on facts, and it has to some extent obscured
the value of StowelPs work as an Admiralty
judge. But the few decisions on general mari-
time law, which have been explained in the
immediately preceding pages, have sufficiently
indicated and illustrated the historical place
which Stowell has obtained, and will continue
to occupy, in the history of English maritime
law.

APPENDIX I

REPORTS WHICH CONTAIN LORD STOWELI/S
JUDGMENTS, AND NOTE ON SOME MS. NOTES BY HIM

Prize and Admiralty Judgments

Reports of Cases argued and determined in the
High Court of Admiralty, commencing with
the Judgments of the Right Hon. Sir William
Scott, Michaelmas Term, 1798. By Chr.
Robinson, LL.D. In six volumes. 1798-1808.

Reports of Cases argued and determined in the
High Court of Admiralty, commencing with
the Judgments of the Right Hon. Sir William
Scott, Easter Term, 1808-1812. By Thomas
Edwards, LL.D.

Reports of Cases argued and determined in the
High Court of Admiralty, commencing with
the Judgments of the Right Hon. Sir William
Scott, Trinity Term, 1811. By John Dodson,
LL.D. In two volumes. 1811-1822.

Reports of Cases argued and determined in the
High Court of Admiralty during the time of
the Right Hon. Lord Stowell. By John
Haggard, LL.D., Advocate. Vol. L, 1822-1825,
and Vol. II. to p. 144.

Haggard, Vol. II., contains also Lord Stowell's judg-
ment in the case of the Slave, Grace. This was
an appeal from the Vice - Admiralty Court of
Antigua, and raised the question whether a

103

104 LORD STOWELL

slave, after residing in England for a year, lost
her freedom on returning to the place of her
birth and servitude, which question Lord Stowell
decided in the affirmative — it has always been
regarded as a decision of much importance.

Ecclesiastical Judgments

Reports of Cases in the Consistory Court of London,
containing the Judgments of the Right Hon.
Sir William Scott. By John Haggard, LL.D.,
Advocate. In two volumes.

Note on certain MS. Notes by Lord Stowell

Two MS. volumes of Lord Stowell's Notes are preserved
in the Admiralty Registry. One is headed " Wm.
Rothery. This contains a copy taken from an
original book lent to me by Lord Stowell for that
purpose, all in his own handwriting." These
notes are arranged alphabetically and are on
subjects connected with Admiralty and Prize
Law. The other volume is headed " Presented
to me by Lord Stowell, Judge of the Admiralty.
Wm. Rothery." This volume contains opinions
chiefly on ecclesiastical subjects, but at the end
are twenty -nine pages of notes of prize decisions
from 1710 to 1749. This volume is entirely in
Lord Stowell's handwriting.

APPENDIX II

CONTRABAND AND BLOCKADE

Extracts from the Memorandum of the British

Government of April 24, 1916. [Cd. 8234.]

See ante, p. 59.

18. THE next passage in the United States note
(Paragraph 14)" relates to the principle of non-
interference with goods intended to become in-
corporated in the mass of merchandise for sale in
a neutral country, or, as it is more commonly known,
with goods intended to be incorporated in the
" common stock " of the country. The United
States Government urge with some force that trade
statistics are not by themselves conclusive in estab-
lishing an enemy destination, and that such statistics
require careful scrutiny. On the other hand, the
mere fact that goods, no matter of what description
or in what quantities, are ostensibly destined to
form part of the common stock of a neutral country,
cannot be regarded as sufficient evidence to prove
their innocence or to justify the assertion that any
attempt to raise questions as to their ulterior destina-
tion is unwarranted and inquisitorial. It is a
matter of common knowledge that large quantities
of supplies have since the war broke out passed to
our enemy through neutral ports. It was pointed

105

106 LORD STOWELL

out in Sir E. Grey's note of July 23, 1915, that it
would be mere affectation to regard some of those
ports as offering facilities only for the commerce of
the neutral country in which they are situated.
They have, in fact, been the main avenues through
which supplies have reached the enemy from all
parts of the world. In the case of goods consigned
to these ports, the ships' papers convey no sugges-
tion as to their ultimate destination, and every
device which ingenuity can suggest, or which can
be contrived by able and unscrupulous agents, is
resorted to for the purpose of giving to carefully
organised arrangements for supplying the enemy
the appearance of genuine transactions with a
neutral country. His Majesty's Government can-
not bring themselves to believe that it is the desire
of the United States Government that traffic of
this kind should be allowed to proceed without
hindrance.

19. The question whether goods despatched to a
neutral port were intended to become part of the
mass of merchandise for sale in that country is one
of fact. Quite apart from the conclusions suggested
by the figures, there is a considerable body of evidence
that many of the goods which have been shipped to
neutral ports during the war were never intended to
become part of the common stock of that country,
but were ear-marked from the beginning for re-
export to the enemy countries. If they had been
intended to form part of the common stock, they
would have been available for use in that country ;
yet at one time in the early days of the Allies' efforts
to intercept all the commerce of the enemy, when
they found it necessary to hold up certain cargoes
of cotton on their way to Sweden, it transpired that
though the quays and the warehouses of Gothenburg
were congested with cotton, there was none available
for the use of the spinners in Sweden. . . .

APPENDIX II 107

22. Similarly several of the shipments which the
Allied naval forces are now obliged to intercept
consist of goods for which there is in normal circum-
stances no sale in the importing country, and it has
already been pointed out in a recent decision in the
British Prize Court that the rule about incorporation
in the common stock of a neutral country cannot
apply to such goods. The same line was taken in
some of the decisions in the United States Prize
Courts during the Civil War.

In the presence of facts such as those indicated
above, the United States Government will, it is
believed, agree with His Majesty's Government that
no belligerent could in modern times submit to be
bound by a rule that no goods could be seized unless
they were accompanied by papers which established
their destination to an enemy country, and that
all detentions of ships and goods must uniformly
be based on proofs obtained at the time of seizure.
To press any such theory is tantamount to asking
that all trade between neutral ports shall be free,
and would thus render nugatory the exercise of sea
power and destroy the pressure which the command
of the sea enables the Allies to impose upon their
enemy.

II

32. The second section of the United States note
(Paragraphs 16-24) deals with the validity of the
measures against enemy commerce which were em-
bodied in the British Order in Council of the llth March
1915, and in the French Decree of the 13th March,
and maintains that these measures are invalid because
they do not comply with the rules which have been
gradually evolved in the past for regulating a blockade
of enemy ports, and which were summarised in

108 LORD STOWELL

concrete form in articles 1-21 of the Declaration of
London.

33. These rules can only be applied to their full
extent to a blockade in the sense of the term as
used in the Declaration of London. His Majesty's
Government have already pointed out that a blockade
which was limited to the direct traffic with enemy
ports would in this case have but little, if any,
effect on enemy commerce, Germany being so placed
geographically that her imports and exports can
pass through neutral ports of access as easily as
through her own. However, with the spirit of the
rules His Majesty's Government and their Allies
have loyally complied in the measures they have
taken to intercept German imports and exports.
Due notice has been given by the Allies of the measures
they have taken, and goods which were shipped or
contracted for before the announcement of the
intention of the Allies to detain all commerce on its
way to or from the enemy countries have been
treated with great liberality. The objects with
which the usual declaration and notification of
blockade are issued have therefore been fully achieved.
Again, the effectiveness of the work of the Allied
fleets under the orders referred to is shown by the
small number of vessels which escape the Allied
patrols. It is doubtful whether there has ever been
a blockade where the ships which slipped through
bore so small a proportion to those which were
intercepted.

34. The measures taken by the Allies are aimed
at preventing commodities of any kind from reaching
or leaving Germany, and not merely at preventing
ships from reaching or leaving German ports. His
Majesty's Government do not feel, therefore, that
the rules set out in the United States note need be
discussed in detail. The basis and justification of the
measures which the Allies have taken were dealt with

APPENDIX II 109

at length in Sir E. Grey's note of the 23rd July,1 and
there is no need to repeat what was there said. It
need only be added that the rules applicable to a
blockade of enemy ports are strictly followed by the
Allies in cases where they apply, as, for instance,
in the blockades which have been declared of the
Turkish coast of Asia Minor or of the coast-line of
German East Africa.

1 The most important passage in the note of July 23, 1915
[Cd. 8233, p. 13], is as follows :

" As a counterpoise to the freedom with which one belligerent
may send his commerce across a neutral country without com-
promising its neutrality, the other belligerent may fairly claim to
intercept such commerce before it has reached, or after it has left,
the neutral State, provided, of course, that he can establish that
the commerce with which he interferes is the commerce of his enemy
and not commerce which is bona fide destined for, or proceeding
from, the neutral State. It seems accordingly that, if it be re-
cognised that a blockade is in certain cases the appropriate method
of intercepting the trade of an enemy country, and if the blockade
can only become effective by extending it to enemy commerce
passing through neutral ports, such an extension is defensible and
in accordance with principles which have met with general accept-
ance."

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112

APPENDIX IV

DOCTORS' COMMONS IN 1598

" On the west side of this streete, is one other
great house builded of stone which belongeth to
Powles Church and was sometime letten to the
Blunts Lordes Mount joy, but of latter time to a
College in Cambridge, and from them to the Doctors
of the Civill Law and Arches who keep a commons
there, and many of them being there lodged it is
called the Doctors Commons." — Stowe, Survey of
London, Ed. 1908, vol. ii. p. 17.

113

INDEX

Admiralty, High Court of, 17,
21, 29, 33, 94

Advocates of Doctors' Com-
mons, 16, 34

Bagnall, John, of Erleigh
Court, 25

Blockade, Stowell on law as
to, 53-59 ; British Govern-
ment on, 107

Boswell, James, 10, 11

Chambers, Sir R., friend of
Stowell, 8

Club, the Literary, Stowell's
election to, 9

Continuous voyage, doctrine
of, 56-59

Contraband, Stowell on law
of, 61-66 ; British Govern-
ment on, 105

Declaration of London, 72-79 ;

cause of, 71 ; end of, 75 ;

Preliminary Provision, 72 ;

Art. 40, 78 ; Art. 43, 78
Doctors' Commons, 6, 16, 17,

18, 23, 51 ; description of,

17, 18 ; in 1598, 113
Droits of Admiralty, 31

Eldon, Lord, 1, 28
Erleigh Court, x, 25, 27

Evans, Sir Samuel, on De-
claration of London, 73 ;
judgments of, 84, 85, 88

France, Prize Law of, 45, 46,

47
Freight on condemned goods,

Stowell on law as to, 60,

68, 87

Grant, Sir William, 49, 50

Jenkins, Sir Leoline, 20
Johnson, Dr., 8, 9, 10, 11, 12,
13, 14, 15 ; Stowell's friend-
ship with, 8 ; Stowell in
Edinburgh with, 10 ; Stowell
executor of, 14
Joint capture, Stowell on,
66-69

Liens on ships and cargoes,
Stowell on, 81 ; approval
of Stowell's judgments on,
83, 84 ; Stowell's Admiralty
decision on, 95, 96, 97

Neutrals, Stowell's attitude
towards, 43, 44

Oxford University, in eight-
eenth century, 3 ; effect of
on Stowell, 4

115

116

LORD STOWELL

Privateers, effect of Stowell's
judgments on owners of, 68

Prize Court, origin of, 18-21 ;
place of, 22 ; jurisdiction
of, 30-33 ; law of when
Stowell appointed Judge,
33, 36, 53, 56 ; reports of
judgments of, 34, 35, 36, 48,
56 ; Stowell's influence on
law of, 51

Reynolds, Sir Joshua,StowelTs
regret at death of, 12

Salvage, Stowell's decisions

on, 98, 99, 100

Scott, William, Stowell's son, x
Sidmouth, Lady, his daughter,

x, 27

Sligo, Marchioness of, x, 25, 26
Stowell, Lord, birth of, ix, 1 ;
description of, at Oxford, 2 ;
description of by Sir Walter
Scott, 2, 10 ; scholar of
C.C.C., Oxford, ix, 2 ; Fel-
low of University College,
x, 3 ; Camden Reader of

Ancient History, ix, 3 ;
leaves Oxford, ix, 2 ; death
of father of, 5 ; on the sur-
render of Yorktown, 5 ;
economical habits of, 5 ;
becomes acquainted with
Johnson, 8 ; appointed
Judge of High Court of
Admiralty, x, 23, 53 ; per-
sonal characteristics of, 24 ;
hospitality of, 24 ; mar-
riages of, ix, x, 25 ; politics
of, 26 ; Member of House of
Commons, 26 ; created a
peer, 26 ; death of, x, 27 ;
his influence on prize law,
38 ; his judicial gifts, 40,
41 ; attitude towards neu-
trals, 43, 47 ; permanence of
his judgments, 81, 85, 86,
91 ; note-books of, 104 ;
portraits of, vi; houses he
lived at in London, ix, x ;
memorials to, x

Zamora, decision of Privy
Council, 76

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